
    383 F. 2d 1009
    KENNETH N. JUHL v. THE UNITED STATES
    [No. 353-65.
    Decided October 13, 1967.
    Defendant’s motion for reconsideration denied January 19, 1968] 
    
    
      
      Francis J. Steiner, Jr., attorney of record for plaintiff.
    
      Charles M. Munneelce, with whom was Assistant Attorney General Barefoot Sanders, for defendant.
    Before Cowen, Ohief Judge, Laramore, Duefee, Davis, Collins, Skelton, and Nichols, Judges.
    
    
      
      Defendant’s petition for a writ of certiorari (sub nom. Augenbliek) filed March 7, 1968.
    
   Nichols, Judge,

delivered the opinion of the court :

This is an action by Sergeant Juhl, an enlisted career man in the Air Force, to recover back pay and forfeitures he has lost as a result of his conviction, after trial, by a General Court Martial. His counsel asserts on his behalf that the conviction was contrary to the constitution and invalid on several grounds. We hold that the court martial lacked jurisdiction to convict because it was prohibited from so doing by Section 153a, Manual For Courts-Martial, 1951, which declares that “a conviction cannot be based” upon the “uncorroborated testimony of a purported accomplice,” when such testimony was “self-contradictory, uncertain or improbable.” The conviction of Juhl was so based. In our opinion, the Congress in substance has declared that such a conviction would be fundamentally unfair. Therefore, it is exposed to collateral attack notwithstanding the statutory provisions for finality in 10 U.S.C. Sec. 876, Article 76 of the Act of May 5, 1950, Public Law 506, 81st Cong., 64 Stat. 108. This conclusion makes it unnecessary to consider other grounds the plaintiff relies on, and we do not do so.

To explain the basis of our conclusion it is necessary to consider the facts in some detail. We do not weigh the evidence in order to determine guilt or innocence but simply recite it to determine whether it includes anything that supports the result, within the rule referred to above.

The plaintiff before his conviction had the rank of Master Sergeant. His record included 22 years service in the armed forces and he had several decorations for bravery in action. He was an air policeman, apparently the equivalent of a military policeman in the Army. He was stationed at the R.A.F. air base at Lakenheath, England, which was at that time in use by the United States Air Force as an operating base. He had a number of air policemen serving under his command, including the purported accomplices subsequently mentioned.

The Air Force, like the other armed services, maintains exchanges on its bases on foreign territory where uniformed personnel and their dependents may purchase consumer articles, free of taxes and customs duties of every kind, including those of the United States and of the host country. This is an important fringe benefit, particularly for persons stationed in the United Kingdom, where the local taxes and duties on such articles as tobacco products and liquor are stiff. To avoid abusing the hospitality of the host country it was necessary for the Air Force to make certain that excessive quantities of AFEX (Air Force Exchange) merchandise did not find their way into the United Kingdom economy. To accomplish this, local Air Force regulations limited each airman and each dependent, e.g., to a quota of 4 cartons of cigarettes a month, with like quotas on other tobacco products and liquor. Each serviceman and each dependent had a ration card issued, which had to be stamped and punched by the salesgirl at the AFEX on each purchase to show by how much the monthly quota was depleted. All personnel were forbidden to possess AFEX merchandise in excess of reasonable quantities, or to barter or sell such merchandise to persons not having such privileges. There was apparently no provision against giving AFEX merchandise away, and in light of this, the standards as to what quantities were reasonable to possess, at one time, were not clear. Apparently, it was, at least tacitly, permitted for persons having exchange privileges to purchase with other persons’ ration cards as well as their own, purportedly to turn over the purchases so made to such other persons.

About June 1961 an informant, whose name does not appear in the case, disclosed to the Air Force that airmen were purchasing excessive quantities of AFEX merchandise and selling it to British civilians, at advances in price; in other words, they were maintaining a black market. Investigation soon implicated many persons, among whom were air policemen who should have been enforcing the law. Three persons in all informed against the plaintiff, of whom two were the purported accomplices who afterwards testified against him, and one testified but in his favor. Some of the accused airmen were tried and convicted by the British for offenses against their customs laws, and as to others, including plaintiff, the British executed a waiver which, in effect, surrendered them to their own Service for trial and punishment. Plaintiff’s two purported accomplices, Airmen Shields and Hughes, were both already convicted and in custody when plaintiff was tried.

The charges and specifications served upon plaintiff in accordance with military procedure are set forth in full in the findings. Two of the specifications named Airman Shields as an accomplice. The evidence on these specifications was given to the Court Martial by Airman Shields and apparently was not convincing, as the tribunal acquitted plaintiff on these specifications. Therefore, they need not be considered further. Shields also gave, what might be called consciousness of guilt evidence, namely, an effort by plaintiff to get him to alter his testimony. Doubtless the Court Martial considered this as relating only to the specifications under which Shields was the accomplice.

The tribunal also acquitted the plaintiff of two other specifications where Airman Hughes was the purported accomplice. These included specifications that plaintiff purchased 6 transistor radios, in excess of reasonable amounts, and that he sold Air Force merchandise—two cartons of cigarettes—to an English civilian, a Charles K. Cox, who did not have exchange privileges.

The Court Martial convicted plaintiff of the remaining six specifications. It will be convenient first to consider specification 4 which charged him with acquiring cartons of cigarettes and boxes of cigars at the AFES in an irregular manner. Hughes testified that he introduced plaintiff to certain British female employees of AFEX who thereafter, in his presence, contributed to plaintiff’s making irregular purchases by not punching his ration card or, if someone was looking on, by punching through a hole that was already punched. The Air Force had written statements by both of the females which in general supported this charge. However, on the stand they testified they had made irregular sales to Plughes only, not plaintiff, and when plaintiff purchased in apparently large quantities, it was due to his presenting other persons’ ration cards as well as his own. They explained the prior statements as due to pressure by investigators and fear of losing their jobs. They had lost their jobs anyway at the time of plaintiff’s trial. The written statements were not received in evidence. It is clear that their evidence did not corroborate that of Hughes, unless contradiction is conceived to be corroboration.

Specification 7 stated that plaintiff, in conjunction with Hughes, transported 50 boxes of exchange cigars, in excess of reasonable amounts, between the Lakenheath base and Brandon, Suffolk, England. The testimony was as follows: Hughes testified that he and plaintiff traveled together, in a Volkswagen, owned by another airman, to a certain Airman Squire’s home at Brandon, because Squire had told him that he had a customer who would buy the cigars. At Squire’s home, Hughes and Squire removed the boxes from the boot or trunk (which, of course, in a Volkswagen is in front). At the preliminary investigation under Article 32 of the Code, Hughes testified that plaintiff remained in the front seat of the car or stood beside it during the unloading. At the trial he testified that plaintiff acted as look-out on the road to be sure that no one surprised them. Plaintiff testified in his own behalf that he made the trip as alleged but knew and saw nothing of any contraband being in the car. Upon arrival at Squire’s home he said he went to the front yard and sat with Mrs. Squire (it was June) having a drink of beer. He said that he could not possibly have seen anything coming on the road from where he was sitting. Squire testified for the prosecution but nevertheless stated that the arrangement to bring him the cigars was made with Hughes and the appearance of plaintiff surprised him; that he and Hughes unloaded the cigars from tire car; that plaintiff sat, during that time, in the front yard with Mrs. Squire; and that plaintiff was in a position where he could not see the car or act as a look-out. A few days afterwards Squire heard of the investigation and threw away the cigars on a public road, so that they would not be found in his possession. He said nothing to implicate Juhl beyond his mere presence. There was no . material variation in plaintiff’s story and Squire’s and nothing significant was brought out on cross-examination of plaintiff respecting this specification. Mrs. Squire did not testify; an affidavit she furnished later indicates she would not have corroborated Hughes if she had testified. When, as here, an accused testifies in his own behalf, he may of course, inadvertently corroborate the accomplice or make admissions that furnish corroboration. Nothing of the sort happened in this case.

Specification 3 charged that plaintiff, in conjunction with Hughes, sold 140 boxes of Air Force Exchange cigars to a person, not having exchange privileges, at Southend, Essex, England. Hughes testified to the occurrence of two transactions that would meet this description. He said an Airman Wainwright gave him a number to call at Southend, although in the preliminary investigation he had said that plaintiff had given it to him. Eventually he settled for the version that he and plaintiff jointly together got the number from Wainwright. Wainwright did not testify. He furnished an affidavit later which denied he ever gave a telephone number for such a purpose to anyone. After Hughes had called the number, on a Friday night, the next day, he testified, he and plaintiff drove in his Volkswagen to Southend, met their contact at a parking lot and went with him to a structure used by a dairy as a garage for milk trucks. There they transferred the cigars and received payment. The purchaser was not identified and did not testify. Obviously, the occurrence of this incident stands on the authority of the accomplice Hughes’ testimony alone. Plaintiff denied that he participated in any such trip or transaction.

We now come to the most curious part of the case, the Southend trip of about a week later, June lTth. This time there were several others in the party and two cars were used. Hughes and his wife went ahead in his Volkswagen, taking their two dogs. (The dogs had been his daughters in the Article 32 investigation.) Plaintiff drove his car, a Chevrolet, and carried with him Mrs. Juhl, their four sons and an Airman Herron, in whose quarters the contraband had been kept the night before, so Hughes testified. The cigars, he said, travelled to Southend in plaintiff’s trunk, or boot, under a blanket. Varying what he said at the Article 32 investigation, Hughes now said they had 20 transistor radios too. The whole party stopped on the way to Southend at an antique shop in a place called Sudbury, where they purchased a Life of Christ and two snake like candle holders with sharp points. They then continued to Southend where both cars stopped near a Chinese restaurant. According to Hughes, the two women took the children and the dogs into the restaurant. Plaintiff, Herron and he then travelled in plaintiff’s car to the dairy garage, delivered the cigars, were paid, and returned to the restaurant. Plaintiff went in waving a big wad of English currency and handed some of it over to Mrs. Juhl. The ladies then went shopping and the men took the children to an amusement park. Southend is on the water and is a common resort for holiday making Londoners. In the late afternoon or evening they returned to the Base and had a snack there for supper. Plaintiff denied going to the dairy garage or anywhere else in his car after leaving the ladies at the restaurant. He said that the purpose for separating before lunch was so that Hughes could walk the dogs, and that two of the boys were with them. After they had joined the ladies in the restaurant he gave Mrs. Juhl five pounds ($14.00) for shopping. Mrs. Juhl testified for the defense and supported her husband’s version. The boys did not testify.

There was ample reason in the evidence to surmise that both Hugheses had an interest in obtaining a conviction. He had already been tried by Court Martial and sentenced, but by some contriving he was kept on the Base to do light office work, instead of the hard labor his sentence called for. He had been released from custody for Christmas. The inference was inescapable that the continued leniency of his future treatment was likely to be contingent on the conviction of his alleged accomplices. Under these circumstances, naturally, attention focuses on Airman Herron as the only disinterested adult, admitted by Hughes not to be a participant in the sale, even though Hughes had him providing stowage for the contraband the night before, and coming with them to the garage. Herron had been returned to a base in the United States shortly after this Southend trip. He had had correspondence with the defense and defense counsel, and the OSI had interviewed him. The defense requested that he be returned to Lakenheath as a defense witness and the Air Force ordered him there. He arrived in London one evening, was met by two representatives of the prosecution, and interviewed at length and until late. The following day he went on the stand. It was clear, therefore, that he would have had little or no opportunity to concert a story with the accused, plaintiff here, except by the risky method of written correspondence. He said he knew nothing of any contraband. His testimony affirmed the plaintiff in every detail and contradicted Hnghes in every respect where his story differed from plaintiff’s. He said that after the party had left Sndbnry the children started playing with the candle holders. This their parents thought might be dangerous because of the spike points, so they stopped the car and Herron opened the trunk and put the candle holders in it. He saw no boxes of cigars and nothing was covered up by a blanket. So far as he was aware the trip was entirely what it purported to be, an innocent family outing.

Mrs. Hughes was put on the stand for rebuttal after the defense rested. Her story was partly favorable to plaintiff, in that he did not wave his English currency around when entering the restaurant as if bragging of a financial coup. Rather, he simply pulled a roll out of his pocket while seated, apparently, when Mrs. Juhl asked for money. (The Juhls said they got English currency at the Base, and their purchases at Sudbury confirm they must have had some then.) One statement of Mrs. Hughes’, ironically brought out by defense cross-examination, is the nearest thing to corroboration of Hughes the case affords. She said that when she was with Mrs. Juhl in the Chinese restaurant, before the men joined them, for some reason she looked out on the street and the plaintiff’s car was gone. According to plaintiff and Herron, the car was not moved. She was, however, then or recently a German national and her mastery of English was imperfect. It was not clear whether the car had really been moved from where she had seen it parked or whether she had been uncertain as to its original location. There is no more dangerous witness than a foreign national whose English is only just good enough for him or her to be denied the help of an interpreter. The Law Officer made it of record (R 426) that she had difficulty understanding and was difficult to understand.

However, her testimony suffers from a more dramatic infirmity. It was brought out on cross-examination that she was living near the Base and when an air policeman went to pick her up to testify, Airman Hughes was with him. The policeman, Sergeant Stedley, overheard enough of the ensuing conversation and repeated it, to make it perfectly clear to us that Airman Hughes, in the guise of questioning her about her recollection of the Southend trip, was actually coaching her as to what to say. At the conclusion of Airman Hughes’ testimony in Juhl’s Court Martial the legal officer (i.e., the judge) had given him the following instructions:

LO: Airman Hughes, you are excused but subject to being recalled as a witness. You are instructed not to discuss your testimony in this case with anyone except counsel or the accused. You will not allow any witness in this case to talk to you about the testimony which he has given or which he intends to give. If anyone other than counsel, these two captains here-
WitNess: Eight, sir.
LO: -or the accused even attempts to talk to you about this case or about your testimony in this case, you should make the circumstances known to Captain Lee. (Captain Lee was the prosecutor.)

While there is no evidence that the prosecution ordered this flagrant violation of the court’s instructions, it was in a position to see to it that they were observed, since Hughes was in custody, and manifestly it should have done so. Considering all the circumstances, we feel compelled to regard Mrs. Hughes’ testimony as utterly devoid of probative value, at least as evidence for corroboration of Airman Hughes’ testimony, since it is really Airman Hughes’ testimony through another’s mouth.

As in the case of Shields, Hughes testified to some statements by plaintiff possibly indicative of consciousness of guilt, but Juhl denied making such statements and they were not overheard by any impartial persons.

There were three other specifications not already mentioned, but the evidence to prove them was only the acts and transactions already described. Charge I, Specification 1 was conspiracy; Charge II, Specification 2 was for possession of Air Force Exchange merchandise, 140 boxes of cigars, in excess of reasonable amounts. This was apparently the same merchandise which plaintiff was charged with having sold in Specification 3. Charge II, Specification 9 was for dereliction in the performance of duties as non-commissioned officer in charge, in that plaintiff knew of black market activities by his subordinates and wilfully failed to apprehend them or report them. There was no evidence of plaintiff having such knowledge, except in the instances already described and those of which he was acquitted.

The requirement of corroboration does not mean that the corroborating evidence should cover every element of the offense so as to be sufficient for conviction apart from the accomplice’s testimony. Christy v. United States, 261 F. 2d 357 (9th Cir. 1958), cert. denied 360 U.S. 919 (1959). In the circumstances, it should not consist merely of indifferent facts, but should in some manner connect the accused with the offense. Arnold v. United States, 94 F. 2d 499, 507 (10th Cir., 1938); Keliher v. United States, 193 Fed. 8, 15-16 (1st Cir., 1912); United States v. Howell, 56 Fed. 21, 39 (W.D. Mo., 1892), appeal dismissed, 163 U.S. 690 (1896).

Corroboration cannot be found in the mere presence of the accused near the scene of the crime. People v. Mullens, 292 N.Y. 408, 416, 55 N.E. 2d 479, 482, motion denied, 293 N.Y. 768, 57 N.E. 2d 845 (1944); O'Quinn v. State, 43 Okla. Crim. 372, 279 P. 358 (1929). In the Brandon transaction there was corroboration that a crime was committed. The accused was admittedly near the scene of that crime, but his presence had an explanation consistent with innocence. If, e.g., the car in the Brandon transaction had carried illicit heroin, corroboration might arguably be found—as the Government argues—in what might be thought the unlikelihood that the admitted offenders would allow anyone not having complicity to be or to travel with them during commission of the offense, with all the risk of exposing the crime accidentally. Here, however, Hughes clearly did not see the cigars as dangerous in that way, as shown by his taking a non-participant (admitted by him to be such) with him in the second Southend transaction. In the absence of other corrroboration, it cannot therefore be found in Juhl’s merely being near the cigars, which he said he was not aware of and did not see.

In the second Southend transaction, Juhl’s story and Hughes’, as we have seen, differed more widely. If Juhl told the truth, he did not deliver any contraband and neither did Hughes. No crime was committed. Conceding arguendo that corroboration might be found in any instance, however, minute, where testimony of others, or circumstances, confirmed Hughes’ version and refuted Juhl’s, there was no such instance except the tainted testimony of Mrs. Hughes. There was no corroboration that a crime was committed, still less that Ju'hl participated in committing it.

We have also considered whether Airman Hughes’ testimony was self-contradictory and are of the view it was so beyond all doubt. When first suspected, Hughes was interviewed by the OSI officers and denied all participation in black market activities. Later, on the 18th of July, he gave a statement to a Captain Miller in which he admitted black market activities on a large scale and implicated numerous persons, including plaintiff. At his Court Martial he again denied all participation in black market activities and claimed that his statement to Captain Miller had been obtained by improper coercion. At plaintiff’s Court Martial Hughes blandly agreed that what he then testified to was entirely contrary to what he had said at his own trial, and he explained the latter as having been on the advice of some unnamed British lawyers. It is not clear whether these lawyers advised him to testify contrary to the truth or whether they based their advice on Hughes’ own statements to them. If, however, it is thought that self-contradiction must be found within the four comers of the same proceeding, it should be noted that the proceeding in this, as in other Courts Martial, includes a preliminary investigation under Article 32 of the Code in which witnesses testify under oath. This is a discovery proceeding and the right of an accused to rely on any conflict between prosecution testimony there and at the trial is manifestly intended. There are in this case very important contradictions between Hughes’ testimony in plaintiff’s Article 32 investigation and that in plaintiff’s trial. Thus there is contradiction whether the plaintiff Juhl or Airman Wainwright was the source from whom Hughes obtained the Southend contact’s telephone number. There is self-contradiction as to whether they carried transistor radios as well as cigars on the second Soutbend trip. In his testimony about the Brandon trip there is self-contradiction whether the plaintiff sat in the car while the contraband was unloaded or acted outside it as a look-out. Squire’s own testimony at the preliminary investigation had plaintiff out of and away from the car and that is undoubtedly why Hughes changed his version. It would appear, however, that if a person contradicts himself—anything he ever said — in his trial testimony, that testimony is self-contradictory. In ordinary speech the fact that a person contradicts himself is not limited as to time or transaction and there is nothing to show the requirement of the Manual with respect to self-contradiction was not intended to be understood as it would be understood in ordinary speech. In United States v. Haderlein, 118 F. Supp. 346 (N.D. Ill., 1953), the testimony of an alleged accomplice was held to be self-contradictory by reason of conflicting testimony previously given under oath before a grand jury.

The Government cites the statement of a Board of Review in United States v. Jones, 15 CMR 664, 671 (1954), to the effect that testimony is not “self-contradictory” if the inconsistency is with statements made prior to the trial and the trial testimony itself is consistent; such prior statements are to be considered only in assessing the witness’ credibility. The Board of Review cites no authority for this position. If it is valid, we believe its validity is limited to the case before the Board where, unlike the one at bar, the witness, in his testimony, does not expressly refer to his former statements and then expressly contradict them, that is, when one would have to go outside the witness’ trial testimony itself to determine that he had contradicted himself. In any event, the Board of Review found no significant inconsistency in the testimony before it. It characterized the statements in question as “minor inconsistencies as to dates, places and circumstances pertaining to the offenses charged,” ibid., and said that the witnesses themselves had explained the inconsistencies away. In the case at bar that was not so. Here, as in Haderlein, sufra, and unlike J ones, the utter inconsistencies of Hughes’ prior sworn testimony was exposed and blithely admitted in Hughes’ testimony at Juhl’s trial itself, Other than Jones, no case pertinent to this issue has been cited to us. (Emphasis supplied.)

In a Military Court the function of the Law Officer, vis-a-vis the rest of the Court, much resembles that of the Judge in a civilian trial, vis-a-vis the jury. He admits or excludes evidence and instructs the president and other members of the court on the law just as a judge would do. The record in this case includes a conference about instructions between the Law Officer and counsel, out of the hearing of the rest of the court. The following colloquy occurred:

LO: It’s my understanding, now, that the accused does does not want instruction on accomplice testimony.
DC: That is correct, sir. This was not the theory of the defense.

Defense counsel had, of course, laid great stress on impeaching the purported accomplices, Hughes and Shields, and apparently saw some inconsistency between his approach to the case and the instruction, whatever it was, that, the Law Officer would have given. Defense counsel knew his way around court martials and his resourcefulness and zeal in behalf of his client were worthy of praise. Therefore, it is necessary to suppose he had in mind a purpose or reason the record now before us does not disclose. Apparently he had had an unrecorded conference with the Law Officer on the same subject. The record reflects a conscientious effort by the Law Officer to protect the rights of the accused and doubtless he would have delivered, if requested, an instruction built around Section 153a, only unfortunately he acquiesced in the theory that it was not required in the plaintiff’s interest.

After the conviction of the plaintiff, as indicated, on 6 of the 10 Specifications, the Court Martial proceeded in due course to impose sentence which was that the accused would be reduced to the grade of airman basic, would forfeit $55.00 a month, and would be confined at hard labor for 6 months. He actually forfeited $43.00 per month, but he served most of the 6 months at hard labor.

The record before us includes an extended review of the case by a Staff Judge Advocate which was the nearest thing to appellate procedure that the plaintiff had a right to, or actually bad. With regard to the accomplice rule all he says is the following:

I note that no instruction on accomplice testimony was given. In view of the other instructions and the issues that were clearly drawn for the court’s decision, no such instruction was necessary. Further, the defense specifically declined it (K. 454). The accused was not prejudiced by the fact that the instruction wasn’t given.

It would appear to have been the position of the Staff Judge Advocate that the lack of instruction on accomplices was not prejudicial in view of the extended instructions on impeachment. The main thrust of the effort of defense counsel was to impeach the accomplice witnesses, Hughes and Shields. However, the absence of prejudice to the accused is by no means as apparent to us. The purport of the accomplice rule is that a conviction upon the uncorroborated testimony of an accomplice, if the said testimony is “self-contradictory, uncertain or improbable,” is not allowed. The effect of Hughes’ self-contradictory statements, considered merely as impeachment, was that the triers of facts could choose whether or not to believe what he said before them, i.e., they could decide whether the witness was, in fact, impeached or not (E 459, 468). The effect of the accomplice rule would seem to be that in a case covered by the rule the determination of guilt would have to be taken away from the fact-finders and they could not render a verdict of guilty whether they believed Hughes was telling the truth now or had told it before.

That is one reason why in this case counsel’s refusal of an instruction on accomplice testimony did not constitute a waiver of the point. If, as we hold, judgment in favor of the plaintiff should have been directed by the law officer on this ground, there was no need or place for an instruction which would have left it up to the court-martial members to decide for themselves whether or not Hughes’ testimony was corroborated and if not whether or not it was “self-contradictory, uncertain, or improbable.” Under our view of the case these were not issues to be given to the fact-finders. Neither plaintiff nor his counsel ever indicated that they were deliberately waiving application of the accomplice rule by the law officer.

The appellate review within the military system does not appear to have been such as to require us to keep hands off under the standards set forth in Burns v. Wilson, 346 U.S. 137, 144 (1953), that is, that we would be going over matters they have fully considered.

In case of mere error, in admitting or excluding evidence or instructing a jury, the failure of counsel to object of course has the normal consequence of barring even a direct appellate reversal, and this holds good as to collateral attack on a court martial when the ground of attack is failure to give full and fair consideration to procedural safe-guards deemed essential to a fair trial. Bennett v. Davis, 267 F. 2d 15 (10th Cir., 1959). The rationale is that the tribunal cannot be said to have “refused to consider” a point not urged. Bishop, Civilian Judges and Military Justice: Collateral Review Of Court-Martial Convictions, 61 Col. LJR. 40, 62 (1961). Here, however, the defect is, we believe, jurisdictional on other grounds, as we will show, and the normal rule applies that a jurisdictional defect cannot be cured by waiver. McClaughry v. Deming, 186 U.S. 49, 66 (1902).

For full understanding the accomplice rule should be considered in context and for this reason we attach the whole of Section 153a of the Manual to this opinion as Exhibit A.

The plaintiff applied to the Air Force Board For Correction of Military Kecords, after the completion of standard military review procedures. The Board considered evidence against the plaintiff which the Court Martial had excluded as illegally acquired, namely plaintiff’s ration card exhibiting irregular punches which may or may not have been over-punches. On the other hand, it also received various affidavits on behalf of plaintiff which purported to amplify, vary, or explain the evidence at the trial, along the lines of plaintiff’s contentions. The decision of the Board was adverse to the plaintiff, but it did not make part of the record any indication of how it evaluated the original or new evidence, or what its reasons were. In the circumstances, we cannot given the Board decision weight against the plaintiff here, or accept it as the previously unprovided appellate review. Plaintiff in argument called attention to the cases in which we have overturned Board decisions which we have found arbitrary, capricious, or not supported by substantial evidence. The argument seemed to be, along the lines of Ashe v. McNamara, 355 F. 2d 277 (1st Cir., 1965), that this judicial power in some manner overrides the finality language of the Uniform Code of Military Justice, 10 U.S.C. § 876. We consider later what effect this finality language has on the scope of our review of the Court Martial itself. Suffice it to say at this point we do not think the finality, whatever it is, is either enhanced or diminished by the Board proceedings. The case stands before us exactly as if plaintiff had never gone to the Board. It is not arbitrary and capricious, in the absence of unusual circumstances not here present, to consider ex parte affidavits of less weight than testimony taken subject to cross-examination.

We have now determined that Section 153a of the Manual For Courts Martial, 1951, provides that no person may be convicted on the uncorroborated testimony of an accomplice if such testimony is self-contradictory. We have further established that the plaintiff Juhl was convicted on the uncorroborated testimony of a purported accomplice. We have further established that the testimony of the purported accomplice was self-contradictory. We have noted that counsel did not request and the Law Officer did not give instruction on this accomplice rule. What remains to be determined is what effect we can give to the foregoing in view of the provision in 10 U.S.C. 876, that the determination of coitrts martial under the Code of Military Justice shall be final and not subject to question in any court except the courts set up by the Code itself.

Our recent decision in Augenblick v. United States, 180 Ct. Cl. 131, 377 F. 2d 586 (1967), takes us part of the way by demonstrating that the Congress clearly indicated in the legislative history must have been demonstrative and not the traditional limited collateral attack on courts martial in habeas corpus proceedings, and further, inasmuch as back pay suits in this court had enjoyed equality with habeas corpus as a means of collateral attack almost ever since the first existence of this court, the Congress could not have intended, the legislation not mentioning either, to abolish one and not the other. The reference to habeas corpus in the legislative history must have been demonstrative and not exclusionary. There is, of course, nothing unheard of in statutory finality language not having in court proceedings its exact literal effect. Ashe v. McNamara, supra, at 281, and cases cited. Therefore, we reiterate that whatever scope of review would be proper, in view of the finality language, in a habeas corpus proceeding, is equally appropriate in a suit in this court for back pay.

The Manual for Courts Martial is not an ordinary handbook. The Uniform Code of Military Justice, supra, Article 86, supra, reads in part as follows:

The procedure, including modes of proof, in cases before courts-martial, * * * may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, * * *

All regulations under this authority were to be reported to Congress. President Truman by Executive Order 10214, 3 CFR, 1949-1953 Comp., p. 408, invoking this authority, promulgated and prescribed the Manual referred to. There can be no doubt he had in mind that failure to comply with regulations might render a proceeding invalid because there is a clause in the order which reads as follows:

* * * Provided, That nothing contained in this manual shall be construed to invalidate any investigation, trial in which arraignment has been had, or other action begun prior to May 31,1951; * * *

The Congress had in mind that failure to comply with some other provisions of the Uniform Code would or might be a basis of collateral attack, for it expressly declared that failure to follow Article 32 (Investigation), 10 U.S.C. § 832, “does not constitute jurisdictional error.” 10 U.S.C. § 832(d).

The manual is a lengthy and formidable document and it would boggle the imagination to suppose that a court martial should be totally invalid for failure to comply with any part of any provision. However, few provisions contain language as strong as the accomplice provision here under consideration. That is, few provisions say as this one does that “a conviction cannot be based” on procedure not in compliance with the rule stated. This appears to indicate plainly that power to convict in violation of this rule is not granted. It is not a mere rule of evidence or procedure.

Duly authorized regulations for the conduct of court mar-tials have the force of law. Ex parte Reed, 100 U.S. 13, 22 (1879). Counsel referred to the accomplice rule as a “statute” in oral argument and the deviation from strict accuracy was immaterial.

Collateral attacks in civilian courts upon court martials have been common for over 100 years in our jurisprudence, and it is important now to consider the effect in such a collateral attack of a violation by a court martial of a statute fashioned to govern its procedure.

It is a commonplace that the historic attitude of United States civilian courts was that they could not review court martial proceedings for legal error, but only for lack of jurisdiction. Carter v. Roberts, 177 U.S. 496, 498 (1900); Swaim v. United States, 165 U.S. 553, 561 (1897); Collins v. McDonald, 258 U.S. 416, 418 (1922); Carter v. McClaughry, 183 U.S. 365, 381 (1902); In re Grimley, 137 U.S. 147, 150 (1890); Hiatt v. Brown, 339 U.S. 103, 111 (1950); United States v. Fletcher, 148 U.S. 84, 92 (1893). In Collins v. McDonald, supra, at 420-21, it was held that the admission, by a court martial, of a confession obtained by duress, was a mere error in admission of testimony which could not be reviewed on habeas corpus, when the accused made no reference to the record to support the assertion of duress. Hiatt v. Brown, is a particularly interesting illustration of the general rule and had the concurrence of all the justices who participated, an unusual circumstance in Supreme Court cases dealing with courts martial at that period. The Fifth Circuit below, 175 F. 2d 273 (1949), had held that the conviction was unconstitutional as contrary to due process because of a group of errors which the court basketed to add up to a constitutional deprivation. The errors were as follows:

“(1) Accused was convicted on the theoiy that although he was on duty as a sentry at the time of the offense, it was incumbent upon him to retreat from his post of duty.
“(2) Accused has been convicted of murder on evidence that does not measure to malice, premeditation, or deliberation.
“(3) The record reveals that the law member appointed was grossly incompetent.
“(4) There was no pre-trial investigation whatever upon the charge of murder.
“(5) The record shows that counsel appointed to defend the accused was incompetent, gave no preparation to the case, and submitted only a token defense..
“(6) The appellate reviews by the Army reviewing authorities reveal a total misconception of the applicable law.” 175 F. 2d at 277.

The Supreme Court said at p. Ill:

It is well settled that “by habeas corpus the civil courts exercise no supervisory or correcting power over the proceedings. * * *. The single inquiry, the test, is jurisdiction.” * * *. In this case the court-martial had jurisdiction of the person accused and the offense charged, and acted within its lawful powers. The correction of any errors it may have committed is for the military authorities which are alone authorized to review its decision. * * *. (Emphasis supplied.)

In the instant case, the mandatory corroboration requirement of § 153a, of the Manual, clearly shows Congress’ intention to withhold from a court-martial the power to convict where that standard has not been met. The standard not having been satisfied here, the court-martial lacked the power necessary to convict the plaintiff.

There exists an ancient and respectable doctrine that a court-martial will lose its jurisdiction by failure to follow applicable statutory procedure. In Dynes v. Hoover, 20 How. (61 U.S.) 65, 81 (1857), the Court said:

* * * When [the court martial sentence is] confirmed, it is altogether beyond the jurisdiction or inquiry of any civil tribunal whatever, unless it shall be in a case in which the court had not jurisdiction over the subject-matter or charge, or one in which, having jurisdiction over the subject-matter, it has failed to observe the rules prescribed by the statute for its exercise. * * *

The Court had previously indicated, at p. 80, that the court martial is a kind of inferior court and where it “has jurisdiction over the subject-matter, but is bov/nd to adopt certain rules in its proceedings, from which it deviates, whereby the proceedings are rendered coram non judicef a proper method of collateral attack was a personal action against the officer who executed the process of the tribunal.

In Runkle v. United States, 122 U.S. 543, 556 (1887), the Court said:

To give effect to its [a court martial’s] sentences it must appear affirmatively and unequivocally_ that _ the court was legally constituted; that it had jurisdiction; that all the statutory regulations governing its proceedings had been complied with, and that its sentence was conformable to law.

In McClaughry v. Deming, supra, at p. 63, the Court said:

“A court-martial organized under the laws of the United States is a court of special and limited jurisdiction. It is called into existence for a special purpose and to perform a particular duty. When the object of its creation has been accomplished, it is dissolved. 3 Greenl. Ev. sec. 470; Broohs v. Adams, 11 Pick 441,442; Mills v. Martin, supra; Duffleld v. Smith, 3 S. & K. 590,599. Such, also, is the effect of the decision of this court, in Wise v. Withers, 3 Cranch, 331, which, according to the interpretation given it by Chief Justice Marshall in Ex parte Watkins, 3 Pet. 193,209, ranked a court-martial as ‘one of those inferior courts of limited jurisdiction whose judgments may be questioned collaterally.’ To give effect to its sentences it must appear affirmatively and unequivocally that the court was legally constituted; that it had jurisdiction ; that all the statutory regulations governing its proceedings had been complied with, and that its sentence was conformable to law. Dynes v. Hoover, 20 How. 65,80; Mills v. Martin, 19 Johns. 33. There are no presumptions in its favor, so far as these matters are concerned. * *

It is true that among these early cases, instances are not often found of successful collateral attack by reason of violation of applicable statutory regulations. However, in Smith v. United States, 38 Ct. Cl. 257 (1903), we held, citing Runkle v.

United States, supra, in a back pay suit that the court martial was void because, contrary to a statutory requirement, the accused had not been served with a copy of the charges and specifications upon his first arrest. The Supreme Court reversed at 197 U.S. 386 (1905), but upon the ground that we misconstrued, the statute. It expressly passed over the jurisdiction issue. It would seem the case stands as a valid precedent in this court on the jurisdictional question, the reversal having been on other grounds. In Mullan v. United States, 42 Ct. Cl. 157 (1907), aff’d. 212 U.S. 516 (1909), we said (at p. 177) (concerning a statute requiring court-martials to confront the accused with the witnesses against him, which right he had waived):

The statute in question is not in any manner a limitation upon the jurisdiction of the court-martial. The authority of the tribunal is not prescribed by its terms. It is merely a legal regulation as to its proceedings securing certain rights to the accused, which in the absence of an express waiver upon his part, must be accorded him by the tribunal or subject their findings or sentence to collateral attack in civil courts, and as such we have treated it. * * * (Emphasis supplied.)

In Humphrey v. Smith, 336 U.S. 695 (1949), the Court held that failure to conduct a proper pre-trial preliminary investigation did not go to the jurisdiction when the trial itself was fair. Three judges dissented and would have held that the omission of a proper statutory preliminary investigation was jurisdictional. It would appear a reasonable inference from the conclusion of the majority that they would have seen the defective procedure as jurisdictional if they had thought it tainted the fairness of the trial itself. Article 32 of the Uniform Code, 10 U.S.C. 832, now expressly declares that this kind of error shall not be jurisdictional.

From the cases up to that point the Congress and the President might well have been on notice that any regulations issued under Article 36, swpra, might be held to prescribe procedure which or some of which would have to be complied with for the court martial to stand up against collateral attack. The paucity of instances under previous law of successful attack on the ground of failure to comply with a statute or a Presidential regulation might have been deemed attributable to the fact that such statutory procedures were few and simple and were not burdensome to comply with.

The challenge of a court martial for failure to follow a statute fashioned to govern it thus would seem to have better historic foundation than its challenge on merely constitutional grounds. Only in 1947 had come Shapiro v. United States, 107 Ct. Cl. 650, 69 F. Supp. 205, which seems to have been somewhat of an innovation as the first successful collateral attack on a court martial for breach of the Bill of Rights. In Burns v. Wilson, supra, Mr. Justice Frankfurter refers to the case in a separate comment at pps. 844 and 847 of the same volume and laments that it was not called to the Supreme Court’s attention by the parties in their briefs. The Justices in the latter case went off in different directions and no opinion commanded the support of a majority. Mr. Justice Minton invoked the old rule limiting collateral attack to jurisdictional issues, citing In re Grimley, supra, and Hiatt v. Brown, supra, but failed to note how Grimley was, among the older cases, representative of one side of the range and not the median. The opinion of the Court, so called, per Mr. Chief Justice Vinson, sustaining the court martial, pronounced doctrines which in a way may be considered to have started a new line of jurisprudence. They point out the separate nature of military law, the need of the military for strict discipline, and the fact that civilian courts lacked supervisory powers in the field. They expressed the view that the habeas corpus jurisdiction was less than that over civilian courts. They looked hopefully at the prospects of the new Uniform Code of Military Justice. They pointed out the finality provision in the Code, but expressed the opinion that it did not relieve the civilian courts of the duty to take corrective action in cases of fundamental unfairness and violations of the constitution. However, the civilian courts should not reweigh issues which military courts have dealt with fairly and fully.

Mr. Justice Frankfurter thought the case should be re-argued. Mr. Justice Jackson concurred in the result and two Justices dissented.

Succeeding decisions in this court, Shaw v. United States, 174 Ct. Cl. 899, 357 F. 2d 949 (1966), and Augenbliek, supra, have developed the themes of constitutional deprivation and fundamental unfairness. Nothing in these cases should be taken as authority that a constitutional deprivation has to be found to maintain a collateral attack, when such an attack would have been maintainable without constitutional grounds before 1950. Augenblich, involved a violation of the Jencks Act which is of general application. There may be a valid distinction between statutes of general application and those fashioned directly for courts martial. At any rate, we found a constitutional issue in Augenblich, so we placed the case in the mainstream of these recent decisions.

Express statutory provisions to assure fairness in court martials were long the only “bill of rights” an accused soldier could rely on. Only later, much later, did it become possible to him to invoke the constitutional Bill of Bights on matters wherein the statutes were silent. It is entirely logical and consistent therefore, when the text and context of the statute permits, that in a collateral attack breach of such an express statutory provision has the same legal consequence as breach of the constitutional bill of rights does when the statute is silent.

The Manual’s accomplice rule, which we apply here, goes to the basic fairness of the trial in that it deals with the existence of any probative evidence sustaining the conviction. To assure that convictions stand upon truly probative evidence, the President has directed that “a conviction cannot be based” on a record failing to meet the accomplice rule. In its relation to fundamental fairness, this rule is similar, and serves a parallel purpose, to the constitutional rule that the due process clause invalidates a conviction rested on no evidence at all. Thompson v. City of Louisville, 362 U.S. 199 (1960); Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965).

Since his conviction was thus invalid, plaintiff is entitled to recover back pay and allowances, less appropriate offsets, from the date on which the pay and allowances were withheld to the date of judgment. Judgment is entered for plaintiff to that effect. The amount of recovery will be determined under Buie 47 (c).

FINDINGS OF FACT

The court having considered the evidence, the report of Trial Commissioner C. Murray Bernhardt, and the briefs and arguments of counsel, makes findings of fact as follows:

I-PRETRIAL

1. Discovery and scope of black-marketing' activities. Early in July 1961 the Office of Special Investigations (OSI) of the Air Force informed Captain Kenton D. Miller, commanding officer of the 48th Air Police Squadron, 48th Air Base Group, RAF Station, Lakenheath, England, that a number of his enlisted men had been engaged in the black-marketing of Air Force Exchange merchandise (principally cigarettes, cigars, liquor, and transistor radios) to unauthorized British civilians in violation of military regulations as well as the customs laws of England.. In the course of his investigation of these reports Captain Miller interrogated about 60 enlisted men in his squadron and concluded that about 49 squadron personnel were involved in such prohibited activities, of whom ten were under the immediate supervision of plaintiff, who was then a master sergeant and Noncom-missioned Officer in Charge (NCOIC) of Security and Law Enforcement at the base, with 25 or 30 enlisted men in his unit. As part of Captain Miller’s investigation, on July 18, 1961, he interrogated Airman Basic Frank W. Hughes, who orally accused 29 men in the squadron of being involved in black-marketing. Eventually ten of these 29 men received punishment either following conviction 'in British courts for violations of British customs laws, or following military proceedings under Article 15 or courts-martial. Just how many of these ten men convicted were under plaintiff’s direct supervision is not revealed in the record, but there were at least four. Of the 60 men interrogated by Captain Miller, three implicated the plaintiff directly. These were Airmen Hughes, Larry Kay Shields, and Wallace Dale Squire. Plaintiff testified that until July 18,1961, when the scandal broke, he was not aware of black-marketing activities by the airmen in his unit.

2. Plaintiff’s background and character.

Plaintiff (sometimes hereafter referred to as the “accused”) was bom March 6,1921, enlisted in the regular army March 8,1939, and served as an enlisted man until January 22, 1945, when he was commissioned a second lieutenant in the Army of the United States, and' so served until October 27, 1946. He reenlisted on November 14, 1946, and bas continued in this enlisted! status to the present time. He arrived at Lakenheath in England September 18, 1959, and served there in the rank of master sergeant as NCOIC of Security and Law Enforcement of the 48th Air Police Squadron until July 18,1961. He was on the board of governors of the NCO Club, and an active member of the pistol team. The character of his service just prior to his court-martial conviction was officially rated as “outstanding”. In addition to numerous campaign and theater ribbons, a good conduct medal, and other unit and personal decorations, he was awarded the Silver Star and Bronze Star Medal (with Oak Leaf Cluster) for gallantry and heroic action in combat in Germany during the closing stages of World War II. At his trial four master sergeants and two staff sergeants who had known plaintiff for several years testified to his good character and reputation for truth and veracity. Prior to plaintiff’s involvement in the court-martial proceeding his commanding officer, Captain Miller, who had served over plaintiff for two years and knew him well, regarded him as outstanding, dependable, tough, and honest. Plaintiff was in fairly good financial condition in 1961. He owed no debts and owned two homes in the United States which were being rented out.

3. Plaintiff’s initial arrest and confinement. On July 18,1961, plaintiff was arrested without charges and confined overnight by order of Captain Miller. He was released from confinement the following day but was relieved of his duties and assigned to laboring chores on the base far below his master sergeant’s rank pending investigation of statements implicating him in black-marketing. He and his family, consisting of a wife and four sons, had been living off the base, but on August 11,1961, he was required to move into quarters on the base. Thereafter until his court-martial trial ending February 2, 1962, he was assigned to unimportant duties and restricted to residence at the base.

4. Consultation with Staff Judge Advocate. At all material times Major (later Lieutenant Colonel) Clifford B,. Carver was Staff Judge Advocate at Lakenheath. On or about August 10, 1961, plaintiff visited Major Carver to obtain advice and to ascertain the details of statements which' he understood had been made by others implicating him in black-marketing activities. He did not ask Major Carver to provide counsel, and Major Carver did not volunteer that plaintiff had any right to counsel at that time. He told plaintiff that he would inform plaintiff when he should engage counsel, and that in the meantime he was not to talk to lawyer-officers on his (Carver’s) staff until Carver found “which way the wind was blowing.” Plaintiff told Major Carver that he did not intend to make a statement regarding the allegation implicating him in illegal activities, for his experience as an Air Policeman led him to think this to be inadvisable as a general proposition. Major Carver subsequently drafted the formal charges against plaintiff, prepared the first posttrial interview report following plaintiff’s conviction by general court-martial on February 2, 1962, in which report he recommended approval of the sentence of the court-martial as adjudged, and had earlier restricted plaintiff to the base while he was under investigation as a suspect or as a material witness against others. There is no indication that Major Carver interrogated plaintiff at any time as to the facts concerning his guilt or innocence, or that he was biased against plaintiff as the latter alleged in a clemency statement which he filed on March 27, 1962, following his court-martial conviction. Major Carver certified that he had not “participated in the trial of this case [i.e., plaintiff’s court-martial] as counsel, a member of the court, the accuser, as a witness, or in any other capacity of a partisan nature. My only connection with the case has been that of Staff Judge Advocate to the Officer exercising Special Court-Martial authority over the accused.”

5. Participation of Captain Lee, Trial Counsel.

Airman Hughes (supra, finding 1) was tried by court-martial on November 2, 1961, with Captain Bichard B. Lee prosecuting the case as Trial Counsel. In late October 1961 Captain Lee called in plaintiff to confer with him as a prospective witness against Hughes; no charges had by then been served on plaintiff.

Captain Lee later prosecuted plaintiff as Trial Counsel in plaintiff’s court-martial. It is not indicated that, in the conferences between Captain Lee and plaintiff, or in a conference between Captain Lee and plaintiffs wife, any admissions damaging to plaintiff or bis wife were made by them which were prejudicial to plaintiff at his subsequent trial. Plaintiff did not consult Captain Lee as his attorney and Captain Lee gave him no legal advice.

6. Article 32b Investigation. Statements were obtained from prospective or potential prosecution witnesses on or about July 18, 1961. Plaintiff was arrested on that day without charges, and released the next day. Thereafter he was restricted to the base through the time of his court-martial trial ending February 2, 1962. Charges were preferred against plaintiff on November 29,1961, with Major Edwin L. Atkins as the accuser. On November 29,1961, an Article 32b Investigation convened attended by Lieutenant Maurice E. Hebert as Investigating 'Officer, the plaintiff, and a reporter. Lt. Hebert informed the plaintiff as to his rights, read the charges to him, and proffered him military counsel or selection of a counsel of his choice. Plaintiff requested Captain Ginsburg for his military counsel, and the Article 32b Investigation then recessed to December 13,

1961, to provide plaintiff an opportunity to secure the services of Captain Ginsburg as his military counsel. The Article 32b Investigation reopened December 13, 1961, attended by Lt. Hebert, a reporter, plaintiff and his defense counsel, Captain Gordon A. Ginsburg. Seven witnesses were examined by Lt. Hebert and cross-examined by Captain Ginsburg. The investigation was then closed. The plaintiff was given a delay to J anuary 13, 1962, for further investigation. On January 3, 1962 the Article 32b Investigation was reopened and testimony was taken from additional witnesses. Formal charges were served on plaintiff on January 18,

1962. The court-martial convened J anuary 30,1962, and trial opened.

7. Charges and specifications. The charges and specifications served on plaintiff on January 18, 1962, were as follows:

CHARGE I: Violation of the Uniform Code of Military Justice, Article 81.
Specification: In that MASTER SERGEANT KENNETH N. JUHL, United States Air Force, 48th Supply Squadron, 48th Air Base Group, did, at Royal Air Force Lakenheath, Suffolk, England, on or about 25 May 1961, conspire with AIRMAN FIRST CLASS FRANK W. HUGHES to commit an offense under the Uniform Code of Military Justice, to wit: Violation of paragraph 51-l.c, United States Air Forces in Europe Supplement 1 to Air Force Regulation 147-14, dated 15 November 1960, and in order to effect the object of the conspiracy the said Sergeant Juhl and Airman Hughes transported Air Force Exchange merchandise (140 boxes of cigars) to Southend, Essex, England, during the period of 25 May 1961 to 24 June 1961.
CHARGE II: Violation of the Uniform Code of Military Justice, Article 92.
Specification 1: In that MASTER SERGEANT KENNETH N. JUHL, United States Air Force, 48th Supply Squadron, 48th Air Base Group, did, at Royal Air Force Lakenheath, Suffolk, England, on or about 18 May 1961, violate a lawful general regulation, to wit:
Saragraph 51.1.b., United States Air Forces in Europe upplement 1 to Air Force Regulation 147.14, dated 15 November 1960; by purchasing Air Force Exchange merchandise (six transistor radios) in excess of reasonable amounts.
Specification 2: In that MASTER SERGEANT KENNETH N. JUHL, United States Air Force, 48th Supply Squadron, 48th Air Base Group, did, at South-end, Essex, England, from about 25 May 1961 to about 24 June 1961 in conjunction with AIRMAN FIRST CLASS FRANK W. HUGHES, violate a lawful general regulation, to wit: paragraph 51.1.b, United States Air Forces in Europe Supplement 1 to Aar Force Regulation 147-14, dated 15 November 1960, by possessing quantities of Air Force Exchange merchandise (140 boxes of cigars) in excess of reasonable amounts.
Specification 8: In that MASTER SERGEANT KENNETH N. JUHL, United States Air Force, 48th Supply Squadron, 48th Air Base Group, did, at South-end, Essex, England, from about 25 May 1961 to about 24 June 1961, m conjunction with AIRMAN FIRST CLASS FRANK W. HUGHES, violate a lawful general regulation, to wit: paragraph 51.1.C, United States Air Forces in Europe Supplement 1 to Air Force Regulation 147-14, dated 15 November 1960, by selling Air Force Exchange merchandise (140 boxes of cigars) to a person not having exchange privileges.
Specification 4: In that MASTER SERGEANT KENNETH N. JUHL, United States Air Force, 48th Supply Squadron, 48th. Air Base Group, did, at Royal Air Force Lakenheath, Suffolk, England, from about 1 April 1961 to about 18 July 1961, violate a lawful general regulation, to wit: paragraph 51.1.h,_ United States Air Forces in Europe Supplement 1 to Air Force Regulation 147-14, dated 15 November 1960, by wrongfully acquiring Air Force Exchange merchandise (carbons of cigarettes and boxes of cigars) in an irregular manner.
Specification 5: In that MASTER SERGEANT KENNETH N. JUHL, United States Air Force, 48th Supply Squadron, 48th Air Base Group, did, at South-end, Essex, England, on or about 15 July 1961, in conjunction with AIRMAN SECOND CLASS LARRY R. SHIELDS, violate a lawful general regulation, to wit: paragraph 51.1.C, United States Air Forces in Europe Supplement 1 to Air Force Regulation 147-14, dated 15 November 1960, by selling Air Force Exchange merchandise (64 cartons of cigarettes and 12 boxes of cigars) to a person not having exchange privileges.
Specification 6: In that MASTER SERGEANT KENNETH N. JUHL, United States Air Force, 48th Supply Squadron, 48th Air Base Group, did, at Royal Air Force Lakenheath, 'Suffolk, England, on or about 14 July 1961, in conjunction with AIRMAN SECOND CLASS LARRY R. SHIELDS, violate a lawful general regulation, to wit: paragraph 14a, United States Air Forces in Europe Regulation 176-1, dated 22 April 1960, by transferring Class VI items (eight bottles of gin) to a person not authorized Class VI privileges.
•Specification 7: In that MASTER SERGEANT KENNETH N. JUHL, United States Air Force, 48th Supply Squadron, 48th Air Base Group, did, on or about 15 July 1961, in conjunction with AIRMAN FIRST CLASS FRANK W. HUGHES, violate a lawful general regulation, to wit: paragraph 51.1.b, United States Air Forces in Europe Supplement 1 to Air Force Regulation 147-14, dated 15 November 1960, by transporting quantities of Air Force Exchange merchandise (50 boxes of cigars) in excess of reasonable amounts between Royal Air Force Lakenheath, Suffolk, England, and Brandon, Suffolk, England.
Specification 8: In that MASTER SERGEANT KENNETH N. JUHL, United States Air Force, 48th Supply Squadron, 48th Air Base Group, did, at Royal Air Force Lakenheath, Suffolk, England, on or about 1 April 1961, in conjunction with AIRMAN FIRST CLASS FRANK W. HUGHES, violate a lawful general regulation, to wit: paragraph 51.1.C, United States Ait Forces in Europe Supplement 1 to Air Force Regulation 147-14, dated 15 November 1960, by selling Air Force Exchange merchandise (two cartons of cigarettes) to Charles R. Cox, a person not having exchange privileges.
Specification 9: In that MASTER SERGEANT KENNETH N. JTJHL, United States Air Force, 48th Supply Squadron, 48th Air Base Group, at Royal Air Force Lakenheath, Suffolk, England, from about 1 April .1961 to about 18 July 1961, was derelict in the performance of his duties as Non-Commissioned Officer in Charge, Law Enforcement 'Section, 48th Air Police Squadron, 48th Air Base Group, in that he had knowledge that subordinate Air Policemen under his supervision were regularly engaged in the violation of Paragraph 51.1, United States Air Forces in Europe upplement 1 to Air Force Regulation 147-14, dated 15 November 1960, by purchasing Air Force Exchange merchandise for purpose of resale and the production of income, by purchasing, possessing and transporting of quantities of Air Force Exchange merchandise in excess of reasonable amounts, by selling Air Force Exchange merchandise to persons not having Exchange privileges, and by acquiring Air Force Exchange merchandise.

II-Trial

8. Convening of general court-martial; motions to dismiss.

a. Immediately after the plaintiff’s general court-martial convened on January 30,1962, it recessed briefly for the Law Officer to entertain defense counsel’s motions to dismiss all charges and specifications on the following three grounds:

(1)Deprivation of speedy trial.

(2)Defective charges and specifications.

(3)Violation of Canon 9 of the Canons of Ethics of the American Bar Association, in that Trial Counsel Lee (the prosecuting officer), prior to his appointment as such, interviewed the accused on matters pertaining directly to his prospective defense against charges not then preferred.

b. All motions to dismiss were overruled by the Law Officer. In presenting arguments in support of the third motion to dismiss (subparagraph (3) above), defense counsel interrogated the accused and Trial Counsel Lee out of the presence of the court-martial, and they were cross-examined.

9. Verdict and sentence.

a. After 473 pages of trial transcript of testimony and arguments taken from January 30,1962 to February 2,1962, the court on the latter date found the accused (plaintiff here) guilty of Charge I and Specification 1 thereunder, guilty of Charge II and Specification's 2, 3,4,7 and 9 thereunder, and not guilty of Specifications 1, 5, 6 and 8 of Charge II. Reference to the Charges and Specifications set forth in finding 7, supra, reveals that in paraphrased parlance the plaintiff was found guilty of the following:

(1) Possessing, transporting and selling, in conjunction with Airman Hughes, 140 'boxes of cigars acquired from the Air Force Exchange in excess of reasonable amounts, to an unnamed unauthorized person in Southend, England, between May 25 and June 24,1961, in violation of Articles 81 and 92, Uniform Code of Military Justice. (Specification 1 of Charge I, and Specifications 2 and 3 of Charge II).

(2) Wrongfully acquiring Air Force Exchange merchandise (cigars and cigarettes) in an irregular maimer from April 1 to July 18,1961. (Specification 1 of Charge II).

(3) Transporting, in conjunction with Hughes, 50 boxes of Air Force Exchange cigars, to Brandon, Suffolk, England, on July 15, 1961. (Specification 7 of Charge II).

(4) Dereliction of duty from April 1 to July 18, 1961, in willfully failing to apprehend and report airmen under his supervision who, with his knowledge, were black-marketing Exchange merchandise. (Specification 9 of Charge II).

b. Again in paraphrased parlance plaintiff was found not guilty of the following Specifications:

(1) Purchasing six transistor radios from the Air Force Exchange in excess of reasonable amounts on May 18, 1961. (Specification 1 of Charge II).

(2) Selling or transferring, in conjunction with Airman Shields, 64 cartons of cigarettes, 12 boxes of cigars, and eight bottles of gin (all from the Air Force Exchange) to unauthorized persons on July 14 and 15, 1961. (Specifications 5 and 6 of Charge II).

(3) Selling, in conjunction with Airman Hughes, two cartons of Air Force Exchange cigarettes to one Cox, on April 1, 1961. (Specification 8 of Charge II).

c. All of the foregoing Charges and Specifications rested ('as expressly alleged in the Specifications themselves) on violations of various subparagraphs of paragraph 51.1, United States Air Forces in Europe Supplement 1 to Air Force Regulation 147-14, dated November 15,1960, except that pertaining to the sale of gin (Charge II, Specification 6, of which plaintiff was found not guilty), which was alleged to violate paragraph 14a, United States Air Forces in Europe Regulation 176-1, dated April 22, 1960. The regulations were not physically in evidence, but presumably the court-martial took judicial notice of them. They were set forth on pages 1-3 of Defendant’s Exhibit 1, a copy of the Advice of the Staff Judge Advocate, Third Air Force, to the General Court-Martial assigned to plaintiff’s case, under date of January 18, 1962.

d. On February 2, 1962, plaintiff was sentenced by the court to reduction in rank to Airman Basic, forfeiture of $55 per month for six months, and confinement at hard labor for six months. On April 23, 1962, the sentence was approved by the convening authority with a modification reducing the forfeiture of pay to $43 per month for six months. The maximum possible sentence if plaintiff had been found guilty on all charges would have been dishonorable discharge, forfeiture of all pay and allowances, reduction to grade of Airman Basic, and confinement at hard labor for 16 years and 3 months.

e. Plaintiff remained in the Air Force after serving his sentence and was, at the time of filing his petition, a technical sergeant.

10. Testimony generally. The prosecution produced as witnesses in its case in chief Airmen Hughes, Shields and Squire, Captain Miller, and three female British civilian employees of the Air Force Exchange (Morley, Fletcher and Coleman). In rebuttal the defendant called the wife of Airman Hughes. The accused (plaintiff here) produced as fact witnesses, besides himself and his wife, six enlisted men, and as character witnesses seven ranking noncom-missioned officers.

11. Veracity, character, and motives of Airman Hughes.

a. Hughes was court-martialed and convicted November 2, 1961, for black-market activities. He was also convicted of black-market activities by a British court for violations of British customs laws. He had trafficked in black-marketing activities for three years, by his own admission. Hughes admitted that his testimony at plaintiff’s court-martial conflicted with and was almost a complete denial of his testimony at his own court-martial, and admitted that he lied (but not under oath) to OSI agents interrogating him in preparation for his own court-martial. Hughes testified that plaintiff had attempted to get him to testify falsely, which plaintiff denied. Hughes denied to the OSI agents any knowledge of black-marketing activities, contrary to his testimony at plaintiff’s court-martial. He testified that he had gone to Southend with plaintiff in June 1961 on a black-marketing mission, although he had testified at his own trial that it was in May 1961, a discrepancy he attributed to poor memory. Hughes said he lied deliberately at his own court-martial at the instance of his British counsel, who wrote out what he was to say and did not ask Hughes whether he was guilty. Whereas Hughes had told OSI investigators that plaintiff had given him the telephone number of a black-market outlet at Southend, he testified in plaintiff’s trial that Airman Wainwright had given the telephone number to him and plaintiff. Hughes admitted having obtained a number of ration cards illegally from a Sergeant Sliwerski. Sergeant Klein testified that Hughes had bragged to him that he had made enough in the black market to pay for a $20,000 home and put $15,000 in the bank. Hughes admitted that he had received property from Airman Shields which he thought to be stolen, consisting of tools and a tool box which Hughes shipped home, after giving some tools to plaintiff (he said). In testifying that he was with plaintiff when they bought a number of transistor radios from the Air Force Exchange for illegal sale on the black-market, Hughes said that he had not mentioned this transaction previously because it had just occurred to him since his own court-martial. Sergeant Klein testified that, on January 3, 1962, Hughes told him that he had testified before plaintiff’s Article 32b Investigation Board, and that “They’re trying to put me in a trick, but they’ll never do it because I’ll lie my way out of it.” Captain Miller, Hughes’ commanding officer, said he would believe Hughes’ testimony under oath.

b. In November 1961, testified Airman Jones (who was convicted of black-marketing in a British court), Hughes told him that Sergeant Collier and Captain Miller, plaintiff’s commanding officer, had threatened that if he (Hughes) did not make a statement against plaintiff he would get a five-year prison term and a dishonorable discharge, so he had complied and had given a statement which was untruthful in part. To the contrary, Hughes testified that he had been promised nothing in exchange for accusing plaintiff. However, in serving his court-martial sentence of six months at hard labor he was given office work, passes, and permission to watch television and attend movies with his wife, concessions not usually accorded prisoners. (See paragraph 6 of the January 18,1962, Advice of the Staff Judge Advocate to the Trial Counsel which describes the lenient treatment accorded Hughes in confinement. This was not before the court-martial, but it was necessarily known to Trial Counsel at the time.) On July 14, 1961, testified Staff Sergeant Klein, Hughes told him that he had cleaned up on the black market, and that “if this thing ever breaks, I’ll drop a lot of people in the soup.” Plaintiff testified that on July 18, 1961, Hughes told him that Captain Miller was selling whiskey through a first sergeant. When plaintiff told him he would have to prove it or go see Captain Miller about it, Hughes became white in the face.

12. Black-market sale to Cox. Hughes testified that in early April 1961 he had sold for plaintiff, as a favor and without compensation, certain alcoholic beverages and cigarettes to one Cox, a British civilian, and turned over the proceeds to plaintiff. Plaintiff denied this. These facts related to Specification 8 of Charge II, of which plaintiff was found not guilty.

13. First trip to Southend. Hughes testified that on or about the evening of June 9, 1961, he and plaintiff drove in Hughes’ car to Southend, England, with 140 boxes of cigars placed on or under the back seat, sold them to an unknown purchaser for £2 per box, divided the money between them, and returned home. At his own court-martial trial on November 2, 1961, and in a written statement he had given Captain Miller, Hughes had said the trip in question was in May 1961, an error which he attributed to a lapse of memory. In his testimony plaintiff denied the facts stated by Hughes, and said that he had taken only one trip to South-end, which was in June 1961 as related in finding 14, infra. Specification 1 of Charge I and Specifications 2 and 3 of Charge II in the case against plaintiff are the only Specifications relating to an offense involving 140 boxes of cigars allegedly committed jointly by Hughes and plaintiff, while Hughes testified as to two black-marketing trips to Southend with plaintiff, each trip allegedly involving the transportation to, and sale of 140 boxes of cigars in, Southend. It is fair to assume that the Specifications refer to only one trip to Southend, and that therefore any testimony by Hughes concerning the earlier of the two alleged trips was not the subject of any specific charges and so was not included in the Specifications of which plaintiff was found guilty. In his testimony plaintiff denied knowledge of the earlier trip to Southend to which Hughes had testified, and there was no evidence of the first trip corroborating Hughes’ account of it.

14. Second trip to Southend. The sharpest conflict in the entire court-martial trial, and the crux of plaintiff’s conviction, concerned a trip to Southend on June 17, 1961, by Hughes and Ms wife and two dogs in their car, jointly with plaintiff, Ms wife, their four cliildren and Master Sergeant Herron in plaintiff’s ear. The issue is whether plaintiff transported in his car 140 'boxes of cigars and 20 transistor radios to Southend on this occasion and, with Hughes, sold them to an unnamed British civilian and divided the proceeds. Hughes and his wife testified that this occurred, and plaintiff’s testimony that it did not is supported by the testimony of his wife and Sergeant Herron. Sergeant Herron, who was flown to England from his station in Texas for the sole purpose of testifying in plaintiff’s behalf at the trial, stated that no cigars or transistor radios were in plaintiff’s car (including the trunk which he had occasion to inspect) at any time during the course of the trip to Southend, and at no time did plaintiff (who was in his presence throughout the trip) engage in the sale of such merchandise to others. Plaintiff and his wife testified and described the trip in detail, denying that plaintiff transported or sold the merchandise as stated 'by Hughes. Mrs. Hughes testified concerning the trip to Southend, but she had no personal knowledge corroborating Hughes’ testimony that plaintiff transported merchandise to Southend and sold it there in conjunction with Hughes to a British civilian. Mrs. Hughes did testify that Hughes, plaintiff, and Sergeant Herron absented themselves for more than half an hour at Southend from their wives and the children, that the Juhl car was gone and that when they returned the plaintiff had some British money (how much she did not know) and gave some money to his wife. Contrary to the Law Officer’s directions, Hughes coached Mrs. Hughes about her testimony, the morning she took the stand. The facts concerning the trip to Southend as related by Hughes constituted the necessary basis of Specification 1 of Charge I and Specifications 2 and 3 of Charge II of which plaintiff was found guilty by the court-martial. The testimony of Hughes, an alleged accomplice of plaintiff, was the sole evidence upon which plaintiff was convicted of the stated Specifications, and Hughes’ testimony was not corroborated.

15. Trip to Airman Squire’s home in Brandon. Hughes testified that on some date between July 14 and 17,1961, he and plaintiff drove to Airman Squire’s home in Brandon in a car borrowed from Airman Baldadian, taking with them 63 boxes of cigars obtained by them from the Air Force Exchange, of which 23 boxes belonged to Hughes and the balance to plaintiff. In plaintiff’s Article 32b investigation hearing on December 13, 1961, Hughes testified that the cigars were definitely on the back seat of the car, while at plaintiff’s tidal Squire testified they were in the trunk compartment. Hughes said that Squire was to sell the cigars for them, and that upon arriving at Squire’s home he and Squire unloaded the cigars from the car and stored them in Squire’s home while plaintiff kept watch for them. Squire testified that, pursuant to arrangements made with Hughes but not with plaintiff, Hughes brought 50 boxes of cigars to his house for him to sell. Plaintiff (said Squire) accompanied Hughes, but while Squire and Hughes unloaded the cigars from the car to the house, plaintiff remained in the yard talking with Mrs. Squire, from which point he could see neither the unloading operation nor the road. Squire said that plaintiff’s name was not mentioned with respect to the deal with Hughes, that plaintiff was not serving as a lookout during the unloading procedures, and that he had no arrangements whatsoever to share the sale proceeds with plaintiff (as he did with Hughes). Squire said that he later threw the boxes of cigars away when he became apprehensive over being caught with them in the course of the investigation being conducted. In his testimony on this subject the plaintiff admitted visiting Squire’s home accompanied by Hughes, but denied any knowledge of transporting cigars or cigarettes to Squire. Airman Baldadian, who was convicted of black-marketing by a British court on January 8, 1962, testified that he had never loaned his car to Hughes except sometimes at lunch, and that he did not lend his car to Hughes on the date or dates when Hughes testified he had borrowed it to drive to Squire’s home, but left some question as to whether he might not have done so. The charges involving the transportation of 50 boxes of cigars to Squire’s home are contained in Specification 7 of Charge II, of which Specification plaintiff was found guilty by the court-martial. His guilt necessarily depended for its sole support on the testimony of Hughes, an alleged accomplice, whose testimony was denied by plaintiff and was not corroborated.

16. Joint sales by Airman Shields and plaintiff. Specifications 5 and 6 of Charge II allege a sale by Airman Shields and plaintiff on July 15,1961, of 64 cartons of cigarettes and 12 boxes of cigars to an unauthorized person, and the transfer by them on July 14, 1961, of eight 'bottles of gin to an unauthorized person. As in the case of Specification 1 of Charge I and Specifications 2 and 3 of Charge II, involving the alleged possession by plaintiff in unreasonable amounts and sale by him and Hughes to an unauthorized person at Southend of 140 boxes of cigars obtained from the Air Force Exchange, the evidence of plaintiff’s guilt (under Specifications 5 and 6 of Charge II) consisted solely of the uncorroborated testimony of an alleged accomplice (in this instance, Airman Shields) of tarnished character and a self-admitted liar except that the plaintiff was found not guilty as to Specifications 5 and 6 of Charge II, while he was found guilty as to Specification 1 of Charge I and Specifications 2 and 3 of Charge II. In view of the acquittal of plaintiff under Specifications 5 and 6 of Charge II, it is not necessary to analyze the evidence adduced at the court-martial in support of the Specifications.

17. Irregular acquisition of cigars and cigarettes.

a. Specification 4 of Charge II accused plaintiff of wrongfully acquiring cigars and cigarettes from the Air Force Exchange in an irregular manner. The evidence as to this charge at the court-martial trial consisted of the testimony of Airmen Hughes and Shields, and that of three discharged female employees of the Air Force Exchange at Lakenheath (Morley, Fletcher, and Coleman), countered by the testimony of plaintiff and his wife.

b. Airman Hughes testified that in April or May 1961 he introduced plaintiff (denied by plaintiff) to Miss Morley, then a British employee of the Exchange, for the purpose of permitting plaintiff to purchase cigarettes without a ration card. Nation cards were issued to authorized personnel at the base permitting them to purchase limited quantities of tobacco items, liquor, and certain other merchandise. Hughes stated that, from the end of April to sometime in July 1961 he and plaintiff went to the Exchange about three times a week to purchase items, mostly cigars, of which they would purchase from one to ten boxes at a time. They would go there about 3:00 to 3:30 in the afternoon, when Miss Morley would relieve the regular employee at the tobacco counter. Airman Shields testified that he visited the Exchange with Hughes and plaintiff on one occasion, personally purchased four cartons of cigarettes above his ration allowance by having his ration card overpunched (i.e., a punch hole overlapping a previous punch hole for the same allotment period), then went to a waiting car, where plaintiff handed him two or three boxes of cigars which he placed on the back seat. He did not testify that he had observed plaintiff purchase the cigars, or that the cigars purchased by plaintiff were in excess of his ration allowance or were purchased without a ration card, or that plaintiff had observed Shields or Hughes make their purchases without or in excess of their ration cards.

c. Miss Morley was an employee of the Air Force Exchange, and at tea breaks served as relief salesclerk at the tobacco counter. Under date of July 18, 1961, she signed a written statement at the urging of a British constable in which she referred to sales of cigars and cigarettes to several airmen, including plaintiff, which statement she testified was not completely true and that it was signed by her under the implied threat that she would lose her job if she did not make it. S'he lost her job anyway. While the statement was attached to the court-martial record marked for identification as Prosecution Exhibit 1, it was neither offered in evidence by the Trial Counsel nor admitted in evidence by the court. It therefore has no standing as part of the evidence against plaintiff. Miss Morley testified that she had never sold tobacco items to plaintiff in any unusually large quantities. She did sell tobacco products at times to plaintiff on ration cards issued to his wife or his friends, but it was (she said) a usual practice for authorized persons to buy tobacco rations for their authorized friends by presenting their friends’ cards. Plaintiff and his wife together were allowed ten cartons of cigarettes at a time (said Miss Morley), and once or twice plaintiff purchased eight cartons. She never sold tobacco products to plaintiff without punching his ration card or those of his wife or friends in such cases.

d. Mrs. Fletcher was an employee of the Air Force Exchange at Eakenhe'ath assigned as salesclerk to the tobacco counter. Under date of July 18, 1961, she signed a written statement at the instance of a British constable in which she referred to sales of tobacco products to airmen, including plaintiff, which statement she testified was signed by her under the threat that she would lose her job if she refused. She lost her job anyway. While the statement was attached to the court-martial record marked for identification as Pros-ecutioii Exhibit 3, it was neither offered in evidence by Trial Counsel nor admitted in evidence 'by the court. It therefore has no standing as part of the evidence against plaintiff. Mrs. Fletcher testified that plaintiff purchased cigarettes for himself and his wife, but never more than their combined ration allowance. Occasionally plaintiff would purchase cigarettes for friends on their ration cards, which was a common practice. She never sold cigarettes to plaintiff without punching his ration card, nor overpunched ration cards to allow persons to buy in excess of their ration allowance. She sold 'large quantities of cigarettes to Airman Hughes, but not to plaintiff.

e. Mrs. Coleman (formerly Mrs. Lock), was a British employee of the Air Force Exchange at Lakenheath, where she was supervisory salesclerk at the radio and record shop. Her testimony related exclusively to the Sale of transistor radios to plaintiff. The only charge against plaintiff involving transistor radios was Specification 1 of Charge II, of which plaintiff was found not guilty. Specification 4 of Charge II accuses plaintiff of wrongfully 'acquiring cartons of cigarettes and boxes of cigars from the Exchange in an irregular manner, but does not refer to the acquisition of transistor radios. Thus the testimony of Mrs. Coleman is not relevant to any charges of which plaintiff was found guilty.

f. In summary, the sole evidence of plaintiff’s guilt of purchasing cigars and cigarettes for himself under Specification 4 of Charge II was the testimony of Airman Hughes, whose testimony if true established plaintiff as his accomplice in violation of Air Force regulations governing the acquisition of rationed items from the Air Force Exchange. The testimony of Hughes in this connection was not corroborated. That of Airman Shields established only that on one occasion plaintiff had handed him two or three boxes of cigars, without further direct evidence as to how he acquired them or whether that quantity was within his ration allowance. Shields’ testimony was not corroborated, and did not serve to corroborate Hughes’ testimony on the relevant charge, nor Hughes his. The testimony of Miss Morley and Mrs. Fletcher denied that plaintiff had purchased tobacco items in excess of bis ration card allowances for bimself or those authorized persons for whom he bought them using their ration cards, but did establish that at most plaintiff purchased cigarettes and cigars for his friends as an accommodation to them, using their ration cards, and that this was a common, accepted practice. The testimony of Mrs. Coleman related to plaintiff’s purchase of radios, 'and was completely irrelevant to the issue raised by Specification 4 of Charge II. Whether the applicable regulation prohibited plaintiff from purchasing rationed items from the Exchange for his authorized friends, using their ration cards and as an accommodation to them, depends on construction. The regulation was not physically 'before the court-martial but presumably judicial notice was taken of it. It appears on pages 2 and 3 of the January 18, 1962, Advice of the Staff Judge Advocate to Trial Counsel, and is in evidence as Defendant’s Exhibit 1.

18. Plaintiff’s dereliction of duty.

a. General. The sole remaining charge of which plaintiff was found guilty was Specification 9 of Charge II, alleging plaintiff’s dereliction of duty from April 1 to July 18,1961, in knowing that Air Policemen under his supervision were engaged in black-marketing activities and willfully failing to apprehend them or to report the violators to his superior officers pursuant to his duty. Plaintiff’s conviction under this Specification necessarily depended exclusively on the testimony of Captain Kenton D. Miller, and Airmen Hughes and Shields, for no other prosecution witnesses testified in support of the Specification, no documentary evidence supporting the Specification was admitted in evidence at the court-martial trial, and the testimony of plaintiff and his witnesses refuted the accusations in the Specification. It thus becomes necessary to analyze the testimony of Captain Miller and Airmen Hughes and Shields with respect to the Specification, as well as to cite from the record facts as to their credibility, veracity, character, and motivation.

b. Captain Miller. Captain Miller had been plaintiff’s commanding officer in England for two years preceding the court-martial trial and was a close associate who held a high regard for plaintiff’s ability, honesty, etc., until events starting in July 1961 caused him to change his mind. Early in July 1961 the OSI brought to his attention that about 49 enlisted men in his command were engaged in black-marketing activities, ten of them being under plaintiff’s supervision. On or about July 18,1961, Hughes orally informed Captain Miller of 29 men in the squadron whom he accused of black-market activities, including the plaintiff. Captain Miller interviewed about 60 men in the squadron, of whom only Airmen Hughes, Shields and Squire implicated plaintiff in black-marketing activities. Some others whom Captain Miller interviewed had suspicions of plaintiff, but no proof. This was the extent of Captain Miller’s knowledge, all of it being hearsay based on statements to him by Airman Hughes, Shields and Squire. Squire testified at the trial but said nothing inculpating the plaintiff. Miller had, except for this hearsay, no information to show plaintiff had any guilty knowledge and the case therefore depends again on the testimony of the alleged accomplices only.

c. Airman Hughes. The testimony by Hughes at plaintiff’s court-martial, relating to this specification, was substantially that already discussed, and its infirmity is the same as with respect to other specifications.

d. Airman Shields.

(1) Veracity and character. Shields admitted he had lied in his statements to OSI investigators, as to the amount of black market purchase money he received. He had testified at his own Article 32b investigation that he had 'bought eight bottles of gin from plaintiff to sell on the black-market, but at plaintiff’s trial he said that he had sold the gin for plaintiff on the black-market and paid the plaintiff later. This transaction is one which figured in Specification 6 of Charge II in plaintiff’s court-martial, of which Specification plaintiff was found not guilty. Shields told the OSI investigators that plaintiff had given him a telephone number of a prospective purchaser of black-market merchandise in Southend, which plaintiff denied in his testimony. Sergeant Bryant testified that in the summer of 1961 Shields told him that “If I go to Molesworth there will be a bunch going with me, including you.” When Bryant replied that be had done nothing, Shields (per Bryant) replied: “No, but I’ll think of something to tell them when I go down there.”, and “I’ll tell them anything to put anybody in a trick if it will get me out of it myself.” Bryant also testified that Shields told him in November 1961 that he had gotten off with an Article 15 (two weeks extra duty and verbal reprimand) and, as to plaintiff: “After the b-s-I told those people, they’ve got enough to hang Juhl.” Bryant reported this conversation to plaintiff. Shields denied that he told Bryant that he would tell anything on anybody to get out of it himself. Plaintiff testified that Shields told him on August 10,1961, that he had made a false statement implicating plaintiff in black-marketing activities, and said “Here I am, one of the biggest fioggers on the base, or was one. And I really dropped you in the you-know-what.” Plaintiff also testified that on this occasion Shields told him that he had gotten off with a light punishment (Article 15) in exchange for making a statement against plaintiff, and that “Tour name ain’t worth a damn on this base any more. You used to have a pretty good position. I told enough b-s-on you to put you— hang you.” When plaintiff asked Shields whether he had been instructed by the legal office not to talk to him about the case, Shields is reported to have replied: “P-on the legal office. I’ll talk to anybody I want to.” Shields admitted that he might have said to plaintiff, after getting a light punishment, that he had taken the easy way out and had made a statement implicating plaintiff in which “I really dropped you in the s-.”, but does not remember having told plaintiff that he made the statement implicating plaintiff in order to avoid a threatened long sentence, although he may have told plaintiff that it would be to his (Shield’s) advantage to make such a statement. Airman Jones testified that in November 1961 Shields told him that he could tell more lies about plaintiff and be believed, because plaintiff’s word did not mean anything on the base any longer. Jones also testified that Shields told him that, in spite of being the biggest black-marketer on the base, he had been given just a pat on the back and told he had been a naughty boy [figuratively speaking] by way of punishment (reprimand and two weeks extra duty), and that Captain Miller and Sergeant Collier had threatened him (Shields) with a six-month sentence and a bad conduct discharge if he did not make a statement against plaintiff. Hughes, who was a good friend of Shields, testified that he had received stolen property from Shields (cf. finding lia sufra). Shields denied that the OSI agent had threatened that his wife (apparently a foreign national) would not be allowed to accompany him to the United States if he refused to implicate plaintiff. Plaintiff testified that Shields was angry at him for his refusal to fix a traffic ticket, and this was corroborated by Airman Jones.

(2) As previously stated, Shields was the sole and uncorroborated witness against plaintiff in connection with Specifications 5 and 6 of Charge II (relating to an alleged sale by Shields and plaintiff on July 15,1961, of cigars and cigarettes and the transfer by them on July 14,1961, of eight bottles of gin to unauthorized persons), of which Specifications plaintiff was found not guilty. Shields’ testimony in support of these alleged offenses had no relationship to any other Specifications of which the plaintiff was found guilty and did not corroborate any evidence of plaintiff’s guilt as to such offenses. Moreover, Shields was not under plaintiff’s direct supervision in the Squadron, which was one of the express elements of the offense charged insofar as plaintiff’s knowledge of Shields’ black-marketing activities is concerned. Shields was a purported accomplice.

(3) The testimony of Shields was “self-contradictory.” The triers of fact must have found it improbable in view of their acquittal of plaintiff on the specifications, other than 9, in which Shields rather than Hughes was the purported accomplice. Insofar as plaintiff’s conviction on specification 9 rested on any transactions testified to by Shields, it was made on the uncorroborated testimony of a purported accomplice which was both “self-contradictory” and “improbable.”

Ill — CORRECTION Board

19. Application to Correction Board.

a. Under date of October 27,1962, plaintiff filed an application with the Air Force Board for Correction of Military Records seeking a complete reversal of his court-martial sentence (and presumably his conviction). Plaintiff stated on the form application that he did not desire to have witnesses appear in person in support of the application. Attached to the application were, in addition to plaintiff’s affidavit, the affidavits of eighteen persons having direct or indirect knowledge of the facts, and the unsworn statements of two other such persons. If the contents of the affidavits are true, they are incompatible with plaintiff’s guilt of the charges of which he was convicted, and shed particular light on the veracity and motivation of Hughes, the chief prosecution witness without whose testimony plaintiff could not have been convicted. They would justify close scrutiny by the Correction Board of the court-martial proceeding.

b. On March 5, 1963, the Director of Military Justice of the Office of The Judge Advocate General recommended to the Correction Board that the relief sought by plaintiff be denied because he had failed to establish the asserted errors and injustice. In its one and one-third pages the letter does not discuss the evidence or the law, but primarily rejects the affidavits accompanying plaintiff’s application as being “executed by persons who were either directly or indirectly interested in the outcome of the trial.” This generalization is without basis in many instances, as the affidavits themselves reveal.

c. On September 17, 1963, the Correction Board sent the plaintiff the following form letter rejecting his claim:

Reference is made to your request for correction of your military records under the provisions of Section 1552, Title 10, United States Code (70A Stat 116).
The administrative regulations and procedures established by the Secretary of the Air Force for the guidance of the Board provides that an application may be denied where the applicant has not submitted sufficient evidence to establish a showing of probable error or injustice in the case.
I regret to advise you that a careful consideration by the Board of your military record, together with such facts as have been presented by you, fails to establish a showing of probable error or injustice in your case. Therefore, in the absence of additional material evidence tending to show the commission of an error or injustice, no further action on your application is contemplated.

d. Plaintiff, through, a staff attorney of the American Legion, applied to the Correction Board for a reconsideration on December 3,1964. On December 14, 1964, the Correction Board sent the following letter to plaintiff’s counsel rejecting his request:

As requested in your letter of December 3, 1964, the Board has again reviewed the case of Kenneth N. Juhl, AF 693 2438.
After careful consideration, the Board determined that a change in the prior decision or a formal hearing is not warranted.

e. The foregoing constitutes the entire Correction Board record furnished the court. It is presumed to be complete. It does not contain a report by a Correction Board examiner advising the Correction Board as to the factual and legal aspects of the claim and making recommendations for its disposition, and it is assumed that no such report was prepared. At pretrial conference on March 30,1966, the parties stipulated that the Correction Board considered Defendant’s Exhibits 1 and 2, which are respectively (1) the Advice of Staff Judge Advocate to Trial Counsel dated January 18, 1962, and (2) a 68-page transcript of testimony taken in connection with the Article 32b investigation of plaintiff as referred to in finding 6, supra. It cannot be determined how much, if any, consideration the Correction Board gave to the contents of Defendant’s Exhibits 1 and 2 described above. There is no stipulation or clear indication that the Correction Board considered or had physical possession of Joint Exhibits 1 and 3, which are, respectively, (1) a 64-page extract from the record of court-martial proceedings before and after the trial itself, and (3) the court-martial trial transcript of over 500 pages, including testimony, arguments, instructions, and exhibits, both exhibits being vital to any bona fide review of plaintiff’s claims. What consideration the Correction Board gave to Joint Exhibits 1 and 3, if any, is not known, since the only clue is the statement in the Board’s form letter to plaintiff (paragraph c of this finding) that it had given “careful consideration” to plaintiff’s military record. It is not indicated that any effort was made by the Board to communicate with the individuals whose affidavits were attached to plaintiff’s application.

f. As stated in the preceding paragraph, one of the court-martial documents which was available to the Correction Board for its consideration was the 88-page transcript of testimony in the Article 32b investigation of plaintiff as a preliminary to his court-martial. Attached to this transcript as “Article 32 Exhibit 2” was a photostatic copy of an Air Force Exchange Kation Card issued to plaintiff covering the period July through December 1961. The original of this ration card was taken from the plaintiff at the time of his arrest on July 18, 1961. The copy of the ration card appears to have been overpunched (i.e., more than one overlapping punchmark in each of four tobacco allotment periods during July 1961), giving rise to the inference at the Article 32b Investigation that plaintiff had purchased more tobacco than he was authorized to have. This exhibit was deliberately not offered by the prosecution at the plaintiff’s court-martial trial because Trial Counsel felt it would not be admissible due to the illegal circumstances of its acquisition by the OSI. Since the transcript of testimony of the Article 32b proceeding, together with the ration card and considerable testimony thereon, was stipulated to have been considered by the Correction Board, but had not been offered to the court-martial because ox the prospective objections to its admissibility, the plaintiff contends here that the Correction Board’s consideration of such illegally procured and tainted evidence deprives plaintiff of his constitutional rights. To offset the possible prejudice inherent in the document, the parties stipulated that if the plaintiff were to testify he would say that some of the punchers used at the Air Force Exchange on ration cards were old and frequently would not cut clean, making it necessary for the clerk to overpunch to get the paper out of the hole, as evidenced by Plaintiff’s Exhibit 2 containing a ration card issued to plaintiff for the period January through June 1962, showing samples of incomplete actual punches for tobacco allotment purchases in June 1962, a period while plaintiff was still in confinement.

CONCLUSION OK LAW

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover on his claim and judgment is entered to that effect, with the determination of the amount of recovery to be reserved for further proceedings under Eule 47(c).

Exhibit “A”

153. Ceedibilitv on Witnesses; Impeachment oe Witnesses.—a. CRedibilitx oe Witnesses.—The credibility of a witness is his worthiness of belief, and may be determined by the acuteness of his powers of observation, the accuracy and retentiveness of his memory, his general manner in giving evidence, his relation to the matter in issue, his appearance and deportment, his friendships and prejudices, and his character as to truth and veracity, by comparison of his testimony with other statements made by him and with the testimony of others, and by other evidence bearing upon his veracity. See in this connection 1495(1) (Cross-examination) .

The court may ordinarily draw its own conclusions as to the credibility of a witness and attach such weight to his evidence as his credibility may warrant. However, there are cases in which the court would be justified in 'attaching no weight at all to the testimony of a witness, or in which the court would not be warranted in accepting certain testimony as sufficient to establish the guilt of an accused. For example, a conviction cannot be sustained solely on the self-contradictory testimony of a particular witness, even though motive to commit the offense is shown, if the contradiction is not adequately explained by the witness in his testimony. Also a conviction cannot be based upon the uncorroborated testimony of an alleged victim in a trial for :a sexual offense, or upon the uncorroborated testimony of a purported accomplice in any case, if such testimony is self-contradictory, uncertain, or improbable. The uncorroborated testimony of an accomplice, even though apparently credible, is of doubtful integrity and is to be considered with great caution.

In general, a person gains no corroboration merely because he repeats a statement a number of times, Hence, a witness ordinarily may not be corroborated by showing that he made statements consistent with his testimony. But this is only a general rule, and there are some situations in which such statements, having a real evidential value, are admissible. If the testimony of a witness has been attacked on the ground that it was due to an influence created by a matter which came into existence after the happening of the event to which such testimony relates, evidence of his statements or conduct, consistent with his testimony, made or occurring before the creation of that influence should ordinarily be received. For example, if a witness is impeached on the ground of 'bias due to a quarrel with the accused, the fact that before the date of the quarrel he made an assertion similar to his present testimony tends to show that his present testimony is not due to bias. If his impeachment is sought on the ground of collusion or corruption, consistent statements made prior to the imputed or admitted collusion or corruption may have such evidential value as to make them admissible, and if his testimony is attacked on the ground that he made an inconsistent statement or on the ground that such testimony was a fabrication of recent date, evidence that he had made a consistent statement before there was a motive to misrepresent, and before any imputed or admitted inconsistent statement, may be received.

If a witness testifies as to the identity of the accused as the person who committed, or did not commit, the offense in question, such testimony may be corroborated, even though the credibility of the witness has not been directly attacked, by showing that the witness made a similar identification with respect to the accused on a previous occasion. In such a case the identifying witness himself and any person who has observed the previous identification may testify concerning it. See as to corroboration of the victim in sexual offenses, 142c (Fresh complaint). See also 1395 (Illustrations of hearsay rule). 
      
      This case was referred to Trial Commissioner C. Murray Bernhardt who submitted a proposed opinion, findings of fact, and a recommended conclusion of law, pursuant to the order of reference and Rule 57(a). we acknowledge great assistance from the proposed opinion but we reach the same result by a different route. We agree with the conclusion of law and adopt it as our own. we adopt the findings of fact with minor revisions, omitting, however, those that relates to the contents of ew parte affidavits before the Board for Correction of Military Records.
     
      
       In affidavits attached to the plaintiff’s Correction Board application, Airmen Linville and Jones aver that plaintiff was on duty the night of June 9, 1901, thus placing him elsewhere than Southend. These affidavits were before the Correction Board but not before the court-martial.
     
      
       Consolidated Confinement Center at RAF Station Moleswortli, tlie standard site for serving sentences' of confinement at hard labor.
     