
    420 F. 2d 1028
    JUNE B. PITT, EXECUTRIX OF THE ESTATE OF BRUCE WILSON, DECEASED v. THE UNITED STATES
    [No. 159-61.
    Decided January 23, 1970]
    
      
      Lawrence J. Simmons, attorney of record, for plaintiff. Charles M. Mwrmecke, witli whom was Assistant Attorney General William D. Buckelshaus, for defendant.
    Before Cowen, Chief Judge, LaeamoRE, Dureee, ColliNs, Skelton and Nichols, Judges.
    
   Per Curiam:

This case was referred to Trial Commissioner George Willi with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 184(h). The commissioner has done so in an opinion and report filed on September 17, 1969. Plaintiff has filed no notice of intention to except and the time for so filing under the rules of the court has expired. On November 6, 1969, defendant moved that the court adopt the commissioner’s findings of fact, opinion and recommendation to which plaintiff has filed no opposition and the time for so opposing under the rules of the court has expired. Since the court agrees with the commissioner’s opinion, findings and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case without oral argument. Therefore, plaintiff is not entitled to recover and the petition is dismissed.

OPINION OE COMMISSIONER

Willi, Commissioner: This case was tried after Bruce Wilson died from causes unrelated to any of the issues presented herein and after the court denied a motion to dismiss for lack of jurisdiction and two separate motions for summary judgment by defendant. The nominal plaintiff, by substitution duly made, is Wilson’s executrix. For convenience, however, Wilson will be referred to herein as the plaintiff.

Two basic claims are presented. First, it is contended that plaintiff is due pay for the period August 21,1956 to January 24, 1965, the date of his death, and second, that he is entitled to damages for the Army’s breach of a contract with him to provide medical care.

The facts, summarized herein, are detailed in the findings of fact accompanying this opinion.

Plaintiff’s entire federal career, which began in 1942, was spent working for the Army as a civilian clerical employee at various domestic and overseas locations. In 1949, pursuant to a 2-year employment contract that included a medical care clause to be later discussed, he went to Germany as an auditor in the Army’s European Headquarters at Berlin. His satisfactory performance of those duties led to ;a promotion in 1955 and a transfer to the Comptroller’s Office of the Berlin Command where he served as a supervisory accountant. He served equally satisfactorily in that position and was well regarded by his superiors and those with whom he worked.

In June 1956, following an investigation and report by the Army’s Criminal Investigation Division, plaintiff was placed under military arrest on charges of having committed various homosexual and lewd acts, some of which involved minors. At that time the Army’s general policy for dealing with cases of alleged perversion by its civilian employees called for no more than administrative termination of employment, by resignation or otherwise. (Finding 27.) The Army authorities regarded plaintiff’s case as beyond the general policy, however, because of the involvement of minors. It was accordingly determined that he should be court-mar-tialed. Because of his employment status plaintiff was not subject to either the civil or criminal jurisdiction of the Berlin courts. United States v. Wilson, 9 USCMA 60, 61 (1958).

When the personnel officer of the Berlin Command learned that plaintiff was to be court-martialed he withheld affirmative administrative action for plaintiff’s removal from the employment rolls pending completion of the court-martial proceeding.

Plaintiff was placed under arrest on June 22, 1956, and confined in the Berlin Army Hospital rather than in a regular detention facility. This was in keeping with the Command’s policy for detention of officer personnel, whether or not ill, awaiting court-martial trial. Aside from the posting of an unarmed guard in the corridor outside his room, it appears that plaintiff was in a patient rather than prisoner status. Promptly after admission, he underwent a series of medical and psychiatric examination. (Findings 17-22.) The medical tests and examinations were essentially negative. Although X-rays showed evidence of earlier tuberculosis, sputum tests were negative as to any current TB infection. The Army psychiatrist found plaintiff to be mentally competent.

On June 25 and 27, 1956, plaintiff was formally served at the hospital with charges and specifications alleging violations of Articles 125 and 134 of the Uniform Code of Military Justice. (Finding 14.)

Faced with the serious charges that had been lodged against him, plaintiff engaged a personal attorney and a psychiatrist, both of whom were highly capable. The attorney, a bilingual German National, had fled Germany after the Beichstag fire and practiced law in this country as a member of the Massachusetts bar until after World War II when he returned to Germany and resumed his practice there.

The civilian psychiatrist had an excellent reputation in his field, and the trial was delayed at plaintiff’s request in order to permit him to undergo examination by his own specialist.

The unfolding legal climate on the question of court-martial jurisdiction over civilians in time of peace prevailing and developing at the time of plaintiff’s pretrial hospital confinement is of significance in assessing subsequent developments in the case.

In November 1955, the Supreme Court decided in Toth v. Quarles, 350 U.S. 11, that five months after his honorable discharge an ex-serviceman could not be constitutionally subjected to a court-martial trial on a charge of murder allegedly committed while he was an airman in Korea.

On June 11,1956, by a 5-4 vote, the Supreme Court upheld the constitutionality of Article 2(11) of the Uniform Code of Military Justice as applied to the court-martial convictions of two civilian wives accompanying their husbands serving in the armed forces overseas in time of peace. Kinsella v. Krueger, 351 U.S. 470; Reid v. Covert, 351 U.S. 487. On November 5, 1956, the Court granted petitions for rehearing in these cases, 352 U.S. 901-902, and on June 10, 1957, under a plurality opinion of four, joined by two Justices concurring specially on the ground that capital offenses were involved, the original decisions were reversed. Reid v. Covert, 354 U.S. 1. Ultimately, in January 1960, the Court came full circle and, on review of habeas corpus proceedings involving plaintiff and another, held unconstitutional, by a 5-4 vote, an overseas court-martial trial of civilian employees of the armed forces charged with noncapital offenses in time of peace. Wilson v. Bohlander (sub nom. McElroy v. United States ex rel. Guagliardo), 361 U.S. 281.

In sum, at the eve of plaintiff’s trial set for August 21, 1956, it was legally settled that one with no current connection with the military could not be constitutionally subjected to a court-martial trial for a capital offense. Further, it had been decided by the narrowest of margins that a dependent accompanying a member of the armed forces overseas was constitutionally amenable to trial by court-martial for a capital offense in time of peace. Though it was ultimately decided that the constitutional guarantee of trial by an Article III court with Fifth and Sixth Amendment protections extended to the military’s civilian employees on all criminal charges, capital and noncapital, it is clear that at the time that charges were preferred against plaintiff, the question of court-martial jurisdiction over civilian employees for non-capital offenses was so far from its ultimate resolution that no bad faith can reasonably be imputed to the Army for pursuing the court-martial route with plaintiff. In short, it cannot be said that in dealing with plaintiff as it did, the Army was doing anything more than what it reasonably believed it had a legal right to do.

On the afternoon before plaintiff’s scheduled trial his civilian attorney delivered the following paper to the Civilian Personnel Office of the Berlin Command:

BRUCE WILSON August 17,1956
CIVILIAN PERSONNEL OFFICER
BERLIN COMMAND
APO 742 U.S. ARMY
SIR,
I hereby wish to notify you that I resign my position with the Berlin Command effective 17.00 hours 20 August 1956.
Sincerely,
8/ BRUCE WILSON
BRUCE WILSON

The Staff Judge Advocate was promptly advised of plaintiff’s resignation and he and the trial counsel assigned to prosecute plaintiff’s case both attempted, unsuccessfully, to persuade the Civilian Personnel Officer to defer the effective date of acceptance of the resignation until after the conclusion of the court-martial proceedings. They both took this position because they apprehended that by a voluntary act of acceptance of the tender according to its terms, the Army might be deemed to have waived its right to assert continuing jurisdiction over plaintiff as an employee. Although the Civilian Personnel Officer felt that the applicable personnel regulations made acceptance of a civilian employee’s resignation, according to its terms, mandatory, it was agreed that advice in the matter would be sought from higher headquarters. This was done, and the Civilian Personnel Officer’s view as to the requirement of the regulations was formally confirmed on September 7,1956. (Findings 31, 35, 36, 62.)

At the outset of the trial on August 21, 1956, plaintiff’s counsel moved to dismiss the charges for lack of jurisdiction, contending that by his resignation the previous day plaintiff had effectively severed all connection with the Army and had therefore placed himself in the same position as the discharged serviceman, Toth. The motion was denied, and plaintiff thereupon entered a plea of guilty to all charges and specifications. After entry of the plea, opinion affidavits by the Army psychiatrist and plaintiff’s own psychiatrist were introduced in evidence prior to sentencing. Both doctors found plaintiff to be a psychopathic personality on the borderline of schizophrenia. Both agreed, however, that he was mentally sane. After consideration of these affidavits, certain other documents from plaintiff’s work record, and argument from counsel, the court sentenced plaintiff to 10 years’ confinement. On August 23, 1956, the convening authority affirmed the conviction but reduced the sentence to 5 years. On August 27, 1956, plaintiff was removed from the Berlin Army Hospital to the Mannheim Stockade.

On September 13,1956, after confirmation from the Army’s Commander-in-Chief for Europe as to the binding effect of a civilian employee’s resignation, a Form’ '50, Notification of Personnel Action, was issued plaintiff reflecting his separation from Army employment, effective August 20, 1956, by reason of and in accordance with the terms of his resignation.

Plaintiff’s claim for back pay depends upon the validity of his resignation. He contends that it was void because submitted in response to an unconstitutional criminal proceeding brought against Mm. In these circumstances, it is urged, the resignation was involuntary as a matter of law.

In McGucken v. United States, 187 Ct.Cl. 284, 407 F. 2d 1349, cert. denied, 396 U.S. 894 (1969), this court dealt extensively with the question of voluntariness as related to the validity of a proffered resignation. Holding that the involuntary nature of a resignation arises from external coercion and duress, basically factual issues, the court announced its standard of voluntariness as being the absence of duress. It then defined that standard as follows (Id. at 289, 407 F. 2d at 1351) :

* * * three elements are common to all situations where duress has been found to exist. These are: (1) that one side involuntarily accepted the terms of another; (2) that circumstances permitted no other alternative; and (3) that said circumstances were the result of coercive acts of the opposite party. * * * Fruhauf Southwest Garment Company v. United States, 126 Ct.Cl. 51, 62 111 F. Supp. 945, 951 (1953).

Though the element of unconstitutionality present in this case entitles plaintiff’s contentions to most careful consideration and justifies the resolution of all reasonable doubt in his favor, it cannot be said that under this court’s established standard his resignation was involuntary. Moreover, any subsisting doubt as to plaintiff’s voluntariness at the time that he submitted the resignation is convincingly dispelled by his conduct in relation to it thereafter.

Undeniably, the event preempting plaintiff’s attention and concern at the time that he submitted his resignation was the imminent criminal trial and the severe penalties that could flow from it.

In terms of timing at least, it cannot reasonably be disputed that the resignation (coming, as it did, on the eve of scheduled trial) was motivated by plaintiff’s desire to defeat court-martial jurisdiction by immediately and completely severing his employment connection with the Army. (Finding 30.)

Finally, in assessing the voluntariness of the resignation when submitted, the court-martial proceeding must, as a matter of law, be recognized as unconstitutional at that time. It cannot be treated as a proceeding, valid when held, that simply became imconstitutional in 1960 when the Supreme Court rendered its decision. Linkletter v. Walker, 381 U.S. 618, 628 n. 13 (1965).

If the above factors are considered in isolation, the case for involuntariness seems appealing. That initial impression is tempered, however, when those factors are examined in depth and in the context of the total situation that prevailed at the time.

The first of the requirements for involuntariness specified by McQueken, supra, is that in submitting the resignation in dispute the employee was involuntarily acceding to terms laid down by his employer. Plaintiff’s resignation does not fit that mold.

By no reasonable hypothesis can it be inferred that the court-martial proceeding was brought for the purpose of inducing plaintiff to resign. On the record, its single discernible object was the imposition of criminal sanctions. This course of action was initiated as an exception to the general policy in cases of alleged perversion directed to separation from the employment rolls, not ¡as a measure in furtherance of that policy. Moreover, the evidence shows that once the Army authorities determined to proceed by court-martial their interest was the direct opposite of encouraging a resignation. They were trying their best to prevent acceptance of the one that had been submitted.

Although plaintiff averred at the pleading stage that his resignation and subsequent guilty plea were solicited from him as a package in return for clemency that did not materialize, there was no evidence adduced that even remotely suggested such an arrangement. The evidence of record points uniformly to the finding that the plaintiff’s resignation was not affirmatively solicited by the Army by way of promise or inducement related to disposition of the charges against him or otherwise. (Finding 30.)

In sum, it is not reasonably possible to characterize plaintiff’s resignation as the embodiment of his involuntary acceptance of terms dictated by his employer.

The second requirement announced by McGucTcen for the involuntariness of a resignation is that the attending circumstances offered the employee no reasonable alternative to resigning.

Here the relevant “circumstances” were the court-martial proceedings with which plaintiff was confronted. Thus, the controlling question is whether resignation is the likely, if not inevitable response of an employee faced with an unconstitutional court-martial trial.

Though there may well have been other motivating factors, such as the hope of securing leniency in sentencing, it is assumed for present purposes that plaintiff’s predominant purpose in resigning was to defeat court-martial jurisdiction by severing his employment connection with the Army. His decision to resign was reached after consultation with his personal attorney who actually delivered the written resignation to the Army authorities on the eve of trial. (Finding 29.)

Albeit a matter of hindsight, it must be recognized that the resignation played no part in the Supreme Court’s eventual finding of nnconstitutionalitj. In fact, the Court’s opinion describes plaintiff as an Army employee, not an ex-employee. Wilson v. Bohlander, supra, 361 U.S. 281, 283. Thus, the resignation proved to be completely extraneous to the question of court-martial jurisdiction.

More persuasive in the context of the predictability of a resignation flawing from the preferral of court-martial charges, is the fact that the irrelevance of the resignation to the jurisdictional issue was reasonably foreseeable at the time that the resignation was submitted.

By its terms, the resignation terminated plaintiff’s employment at the close of business on August 20, 1956. At that point the court-martial process was well under way, charges having been served almost 2 months before and at a time when there was no question as to plaintiff’s status as an Army employee. In its first Reid v. Covert opinion of June 11,1956, the Supreme Court clearly indicated that court-martial jurisdiction was unaffected by a shift in the defendant’s status occurring after the proceedings were under way. Specifically, the Court held that military jurisdiction, once attached, continues until final disposition of the case. Reid v. Covert, supra, 351 U.S. 487, 490, 492. That holding was based on traditional principles of jurisdiction and has never been modified.

Aside from plaintiff’s attempt to defeat jurisdiction, the evidence suggests no other causal connection between the court-martial proceeding and his act of resigning. Treating the resignation as a legitimate but unavailing jurisdictional maneuvering device conceived with the benefit of counsel and appraising it in the light of the legal climate prevailing at the time, it cannot be reasonably concluded that within the meaning of McGucken, supra, the fact of the impending court-martial trial left plaintiff no alternative to resigning.

Following the 1-day court-martial trial, the conduct of plaintiff and the Army convincingly demonstrates that both parties regarded the resignation as being what its terms disclosed — an unqualified and final termination of plaintiff’s Army employment.

For its part, the Army accepted the resignation as submitted. It did this even though its legal representatives in the court-martial proceeding strenuously argued against acceptance because of resulting prejudice to tbe Army’s case. More important, by accepting tbe resignation tbe Army forwent its opportunity to remove plaintiff from tbe employment rolls under tbe administrative procedures established for that purpose. Finally, there is nothing in tbe record to suggest that in taking tbe resignation at face value and acting on it accordingly the Army was ignoring some indication that it was other than what it purported to be.

Upon denial of his motion to dismiss at the outset of the court-martial proceeding, plaintiff saw that his resignation Was not going to defeat jurisdiction. Thus apprised, he gave no indication that he regarded his resignation as qualified or conditional.

On September 13,1956, after his separation had been formally completed, plaintiff made application for a refund of his retirement contributions. On the form that 'he executed he specified that his Army service had terminated August 20, 1956. Pursuant to this application he was paid $2,828.10. (Finding 42.)

At no time during his confinement did plaintiff ever assert, in court or out, that his resignation was involuntary or otherwise tainted. (Finding 58.)

Plaintiff’s first notice to the Army that he felt entitled to back pay and restoration to his former job was in the form of a letter, dated March 14, 1960, to the Comptroller for the Berlin Command. Insofar as pertinent, the letter stated (finding 59):

I hereby request that I be restored to my position as Auditor, G.S.-ll, with all in-grade promotions, back pay, and all other benefits which I may be entitled to as a result of my illegal confinement in August 1956 which has been declared unconstitutional by the United States Supreme Court (361 U.S. 281).

Even at that point plaintiff did not assert that his resignation was defective or invalid. Rather, he asked for back pay 'as the measure of damages for confinement under an unconstitutional conviction. The availability of damage relief for unjust conviction is exclusively governed by the provisions of 28 U.S.C. § 2513 (1964 ed.). Confinement under an unconstitutional court-martial conviction is not compensable under that statute. Osborn v. United States, 322 F. 2d 835 (5th Cir. 1963).

On May 18, 1960, the Berlin Command replied to plaintiff’s letter and advised him that “* * * the Supreme Court Decision does not support your claim for restoration to your former position.” (Finding 61.)

Not until plaintiff came to this court did he contend that he was due back pay because his resignation was involuntary and therefore void.

In summary, while the hope of defeating court-martial jurisdiction no doubt inspired plaintiff to resign at the particular time that he did, there is nothing in the record from which it can be reasonably inferred that he did not intend the resignation to be effective for all purposes and in all events. Moreover, it must be recognized that the resignation had the practical effect of preventing the Army from proceeding in 1956 with administrative removal. This court is not unmindful of such considerations when asked to invalidate a resignation. Johnson v. United States, 111 Ct. Cl. 750, 760, 79 F. Supp. 208, 213-14 (1948).

The remaining claim in suit is for money damages for defendant’s alleged breach of its contractual agreement to provide plaintiff with medical care. Paragraph 8 of plaintiff’s employment contract with the Army provided: “Necessary medical care and hospitalization will be provided by your employing command, while in the oversea area, pursuant to Army Regulations * * (Finding 6.) Until August 20, 1956, when he terminated his employment by resignation, this provision established and defined the Army’s responsibility to plaintiff for medical care. In Booth v. United States, 140 Ct. Cl. 145, 155 F. Supp. 235 (1957), this court considered an essentially identical clause in the contract of a civilian employed overseas by the military and construed the Government’s obligation as follows (at 150-51):

* * * To satisfy that contractual obligation, the United States, acting through the medical personnel of the United States military government in Germany, was obligated to meet the same standard of care as any other physician contracting to render medical service. That standard is -usually stated to be such “reasonable and ordinary care, skill, and diligence as physicians and surgeons in good standing in the same neighborhood, in the same general line of practice, ordinarily have and exercise in like cases.” * * *
While the Army medical personnel in Germany, in their medical care and treatment of Booth, had to exercise that degree of care and skill ordinarily exercised by the medical profession in similar cases, it did not have to exercise extraordinary skill and care or the highest degree of skill and care possible, and so long as the requisite skill and care were used, a mistake in diagnosis was not malpractice. * * *

The evidence shows that in March 1958, plaintiff had minimal active tuberculosis in the left lung. This was discovered in the course of a routine physical examination upon plaintiff’s transfer from the Mannheim Stockade in Germany to the Army’s New Cumberland Barracks confinement facility in Pennsylvania. (Findings 46,47.)

Plaintiff has no quarrel with the diagnosis and care that he received following initial detection of his tubercular condition at New Cumberland. He was promptly transferred to the Valley Forge Army Hospital to undergo further examination. The results of that examination, including positive sputum tests, confirmed the initial diagnosis. (Finding 48.) Plaintiff was thereupon removed to Fitzsimons Army Hospital, the Army’s hospital specializing in tuberculosis, where he received care and treatment that arrested his tuberculosis before his release pursuant to the Supreme Court’s mandate in the habeas corpus action.

It is contended that plaintiff had active tuberculosis in 1956 when confined at the Berlin Army Hospital awaiting trial and alleged that the Army breached its medical obligation to him by failing to detect the condition at that time and treat it accordingly. The sole evidence in support of this proposition is the opinion testimony of two doctors given at the trial and based principally on their interpretation of Army medical records. At most, this testimony raises the possibility of an inaccurate diagnosis. Viewed on the evidence as a whole it clearly does not establish a breach of the liability standard for medical care announced in Booth, supra.

The clinical records show that on his admission to the Army hospital in June 1956, and during his 2-month stay there plaintiff underwent extensive medical examination and testing. (Findings 18-22.) Though chest N-rays suggested the possibility of pulmonary tuberculosis, which plaintiff had once had years before, follow-up tests, including the reliable sputum test, were all negative. Moreover, plaintiff’s statements on interview did not disclose any of the usual symptoms of tuberculosis such as weight loss, unusual fatigue, night sweats or bronchial difficulty.

On August 27,1956, plaintiff was released from the Berlin Army Hospital for confinement at the Mannheim Stockade with a diagnosis that showed no physical disability. (Finding 39.) A physical examination on arrival at the stockade showed plaintiff mentally and physically fit to perform hard labor. (Finding 41.)

The documentary evidence pertaining to the period of plaintiff’s confinement at the Berlin hospital in 1956 fairly suggests that he had no active tuberculosis at that time. In any event, it demonstrates that the diagnostic procedures applied in his case were of sufficient thoroughness and efficacy to meet the standard of medical care that the Army owed him by contract. A difference of professional opinion in ultimate diagnostic conclusion, which is all that is present on this record, is not enough to fasten liability on the Government for substandard care. Booth, supra.

After August 20,1956, the effective date of his resignation, plaintiff’s status was that of a prisoner. The applicable Army regulations provide that prisoners are to receive the same medical services as those afforded military personnel generally. (Finding 62.) Basically, the procedure involves the traditional daily sick-call.

Plaintiff was confined at the Mannheim Stockade from September 1956 until March 1958. He received medical treatment there on only three occasions, all in February 1957, and in each instance for superficial complaints wholly unrelated to respiratory difficulty. (Finding 45.)

Since plaintiff was found to have moderately advanced pulmonary tuberculosis upon his transfer to the New Cumberland Barracks in 1958, it is clear that he developed active tuberculosis at some time during his confinement at the Mannheim Stockade. That fact alone, however, does not create Government liability because there is no evidence either that plaintiff was ever denied any medical treatment that he requested at Mannheim or that his sickness manifested itself in a manner that should reasonably have alerted the authorities there to his need for care and treatment of tuberculosis. Accordingly, we do not reach the jurisdictional problem of this court redressing any tortious malpractice shown on the merits to have occurred.

To the extent that the record sheds any light on the time at which the tubercular condition became active, the indication is that it was during the latter part of plaintiff’s stay at Mannheim. Thus, in an interview on or about April 10, 1958, at Valley Forge Army Hospital, plaintiff advised the attending physician that he had “recently” noted that he was having night sweats — an indication of tuberculosis.

In sum, the evidence adduced simply does not show that the Army failed either (1) to meet the standard of medical care required of it while plaintiff was an employee, or (2) to provide him adequate medical attention as a prisoner.

Since plaintiff has not prevailed on either of his two claims, the petition must be dismissed.

FINDINGS of Fact

1. June B. Pitt, plaintiff in this action by substitution, is the duly qualified and acting executrix of the estate of Bruce Wilson who died on January 24, 1965, prior to trial of this action and from causes unrelated to any of the issues presented in it.

2. Bruce Wilson was born a United States citizen on March 18,1904, and was a resident of California at all times relevant hereto.

3. Wilson, who bad no military service, was first employed as a civilian by the United States Army on June 22,1942, at San Pedro, California. In connection with that employment, he underwent a Civil Service Commission physical examination on June 18,1942. The report of that examination reflects that Wilson weighed 136 lbs., was 71 in. tall, and was found to be in generally good physical condition except for myopia of both eyes.

4. On October 25, 1946, Wilson had a physical examination at the Thirteenth Army Station Hospital which again found him to be in generally good physical condition. At that time he weighed 150 lbs.

5. In April 1949, he was appointed to the position of Audit Analyst (Beview), CAF-9, $4,730.40 annual base pay, plus a 10 percent foreign post differential, to serve as a civilian employee with the Army in Germany. His point of hire was San Francisco, California.

6. On April 1, 1949, Wilson executed an Employment Agreement that included the following terms:

2. This is an excepted appointment of indefinite tenure under Schedule A or B of the Civil Service Rules * * *.
3. Unless separated at an earlier date for the convenience of the Government in accordance with applicable regulations, you are required to remain in service with the command at least 24 months from time of arrival at permanent duty station in order to be authorized return transportation to your place of residence at Government expense.* * *
‡ ‡ ‡ ^
8. Necessary medical care and hospitalization will be provided by your employing command, while in the oversea area, pursuant to Army Begulations * * *.

7. Wilson departed the United States on May 3, 1949; arrived in Frankfort, Germany, on May 16,1949; and shortly thereafter began his civilian duties with the Army as an auditor stationed in Friedberg.

8. In August 1955, Wilson received a promotion and became a supervisory accountant in the Comptroller’s Division of the Berlin Command, a position that he retained for the balance of his working career with the Army.

9. Throughout his employment by the Army in 'Germany, Wilson performed his duties capably and conscientiously. He was highly regarded professionally by his superiors and by those with whom his work brought him into contact.

10. In early 1956, a West Point cadet, who was on leave in Germany visiting his father, telephoned the Assistant Staff Judge Advocate of the Berlin Command to convey his suspicion that Wilson was involved in certain criminal conduct.

11. The Judge Advocate representing him relayed this information to his superior, the Staff Judge Advocate, to the Chief of Staff of the Command, to the cadet’s father, and to the Criminal Investigation Division ( CID).

12. By June 1956, CID had completed its investigation of Wilson and submitted its report.

13. On June 22,1956, Wilson was arrested on the strength of CID’s investigative findings. In accordance with the Command’s standard policy applicable to officers awaiting trial by court-martial, he was confined in the base hospital rather than a stockade or similar detention-type facility. Wilson’s hospital confinement consisted of being placed in a room with an unarmed 'guard stationed outside the door in the corridor. In general, Wilson was accorded hospital privileges including the reception of visitors.

14. On June 25,1956, Wilson was served with charges and specifications. There were two specifications of lewd and lascivious acts with males under 16 years of age, in violation of Article 134 of the Uniform Code of Military Justice, and three specifications of sodomy with enlisted men in the Berlin Garrison, in violation of Article 125. On June 27, 1956, an additional charge was preferred on two specifications of displaying lewd and obscene photographs to two different minors, in violation of Article 134. There was no evidence uncovered by the investigation or otherwise indicating that Wilson had engaged in any improper acts other than those charged.

15. In addition to assigned military counsel, Wilson retained Dr. Arthur Brandt, a German National who was a highly competent bilingual attorney well-versed in both German and American law. He had fled Germany after the Reichstag fire and practiced law in the United States as a member of the bar of Massachusetts until the end of World War II when he returned to Germany and resumed his practice there.

16. While in the hospital awaiting trial, Wilson underwent a series of physical and mental examinations, including examinations by Dr. Werner Jaffe, a Berlin forensic psychiatrist of excellent reputation, whom Wilson himself engaged. Trial proceedings were delayed at Wilson’s request in order to permit Dr. J affe to conduct the desired psychiatric examinations.

17. On June 21,1956, the date of his admission to the military hospital, Wilson was examined by Dr. Horst N. Bertram, an Army psychiatrist on the hospital staff. Dr. Bertram’s report of the examination stated:

The pt. was seen for psychiatric evaluation on admission, 21 June 1956.
This is a fairly tall, asthenic individual, who radiated pleasantness, and good spirits. He made a clean and neat general impression and was very outgoing in a friendly, polite way. He was noticed to be fairly tense, his face was flushed. He smoked constantly and was quite unable to sit still in his chair. He was very co-operative and answered questions promptly ? coherently and relevantly without undue circumstantiality, and there was no unusual thought content. His affect was almost euphoric; there was no indication of any mental disturbance, such as delusions or hallucinations. Pt. appeared to be of bright normal intelligence. He was perfectly oriented; memory was intact.
The most characteristic feature of the interview seemed to be the pt.’s bland defensiveness. He did not appear to be disturbed about the serious difficulties he is m and dealt with these delicate matters in a rather frank but bland way. He admitted most of the things brought against him in a general way, but refused dramatically the implication that he is an overt homosexual. The most he would say was that he could not believe that he was “framed” and that since the complaints' were brought against him, they were probably true, although he does not seem to remember them and claims that intoxication could play a part. He stated that he drinks 8-9 bottles of beer per night. He also claims that he is heterosexually interested, that he has a “lady-friend” who comes to visit him, and that he was at one time married about 25 yrs. ago. He spoke freely about his previous employment in Arabia, the Philippines and Germany and denied that he ever had similar trouble.
The examiner felt that the pt.’s euphoria was somewhat forced, and that his affect was not entirely appropriate in relation to his emotional disturbance. The general impression was that of a highly intelligent, smooth and glib psychopath whose insight is impaired and faulty. He did not present overt effeminate mannerisms.

18. During his hospital confinement Wilson also underwent extensive medical examinations and testing. The doctor’s report of an examination on June 28, 1956, stated in part:

This 52 year old white male Civilian was admitted to this hosp. for phys. ex. because of administrative reasons — confinement physical examination. He likes to drink beer, 6 to 9 bottles per day for years. He smokes 20 to 40 cigarettes per day. He maintained the same weight for the last 25 years. No night sweats, some cough in the morning but not after 10 a.m., producing little clear or no phlegm. Otherwise he felt healthy so far, no unusual fatigue, rare colds, last “influenza” 3 years ago. No he-moptysis. Did not have a chest-x-ray for many years, probably 10 or so. Once had a pneumothorax 1941/2, thought to be spontaneous.
Family history: Father died 66 years old from diabetes and complications. One sister is in a hospital with cancer and one brother died of hypertension.
Physical examination reveals 'a 52 year old white male in no discomfort, rather skinny, no sign of jaundice, rash, psychic disorder, no fetor ex ore. Head and neck normal.
EENT: wears glasses — fundi normal (according to age), ears normal, nose and throat normal except that tonsils are out.
Chest normal, equal expansion with respiration. There is a slight bronchial breathing over the left upper lungfield but no wheezes, rales, dullness or change in vocal fremitus can be found at present. Heart normal to p. and a. Large lip-oma over the left shoulderblade region.
Abdomen soft, liver and spleen not palpable, no tenderness, no mass.
Genitals, skin, reflexes, extremities etc. normal except for some athletes feet. Temp., pulse and BP essentially normal.
Hosp. course: After admission the routine blood work and urine was done and a 1 plus sugar was reported in the urinalysis, the hematology showed a 21 mm/hr. sedimentation rate. The chest-x-ray revealed mottled, infiltration in the left infraclavicular region suggestive of pulmonary tuberculosis. For this reason pat. was transferred to the medical service this morning and will have PPD skin test now, sputum and gastric content studies for AFB and was started on a glucose tolerance test this morning. Left lat. and post, oblique chest-x-rays will be taken Monday and included with the charts.
Pat. will be transferred to a Gen. Hosp. Wednesday, for evalu. and disp.
Impr.: Observation, medical, for pulmonary tuberculosis, and diabetes mellitus.

19. Tubercle bacilli sputum tests (guinea pig) were taken during the period June 26-29, 1956, and proved negative, as reflected by a test report noting “no signs of TB infection.”

20. Among the doctor’s progress notes for the period June 21-81, 1,956, were the following entries:

22 June — 1 + diabetes was picked up. Tolerance tests and evaluation ordered.
22 June — Patient denies any weight loss.
23 June — See above, pat. transferred from NP service with X-Ray findings suggesting LUL pneu-monitis of tubercular origin and lab findings of mild diabetes.

21. A radiographic report of June 21, 1956, stated as follows:

Extending from the upper part of the left perihilar region into almost the entire left upper lobe are strings of increased mottled density within this area are several calcifications noticed. In the lower part of the left upper lobe is a round area of radiolucency noticed which might be due to cavitation. Further noted is a blunting of the right diaphragm in the costo-phrenic angle. Remainder of the lung tissue and heart appears to be normal. Increase of the bronchovascular markings with cirrhotic and productive findings in the left upper lobe. Adhesion of the right diaphragm in the costo-phrenic angle. Patient should be clinically investigated for acid fast infection.

22. A radiographic report of June 23, 1956, stated as follows:

Chest, left posterior oblique position: Previously described areas of increased density in the left upper lobe are also seen very good on lateral and oblique view. This area is only confined to the left upper lobe. On lateral view, the interlobar fissure between the left upper and lower lobe is seen. Further noted is a soft tissue swelling in the region of the left sequalae which is most probably caused by a tumor growth or a cyst. Spurring of the articulating surface of the vertebra. This is most probably due to arthritic changes.

23. In response to a request by the Army’s trial counsel, a three-man medical board convened on June 27, 1956, and certified i

(a) that the accused was at the time of the alleged offense so far free from mental defect, disease or derangement as to be able, considering the particular acts charged, to distinguish right from wrong.
(b) that the accused was, at the time of the alleged offense so far free from mental defect, disease or derangement as to be able, considering the particular acts charged, to adhere to the right.
(c) that the accused possesses sufficient mental capacity to understand the nature of the proceedings against him and intelligently to conduct or cooperate in his defense.

24. On November 7,1955, the Supreme Court decided Toth v. Quarles, 350 U.S. 11, holding that five months after his honorable discharge an ex-serviceman could not be constitutionally subjected to a court-martial on a charge of murder allegedly committed while he was an airman in Korea.

25. On June 11,1956, the Supreme Court decided Kinsella v. Krueger, 351 U.S. 470, and Reid v. Covert, 351 U.S. 487. On June 10, 1957, the Supreme Court, on rehearing, again decided Reid v. Covert, 354 U.S. 1.

26. On June 16, 1956, Wilson signed a form request that he be placed on annual leave status until further notice.

27. On March 13,1952, the Adjutant General’s Office of the Army issued the following directive, captioned “Procedure for Handling Cases of Alleged Perversion (Civilian Employees) ”:

1. The handling of cases of alleged perversion on the part of civilian employees of the Department will be performed as set forth herein.
2. As a basic principle, acts of perversion are regarded primarily as a matter of lack of qualification for Government employment. Only if an employee’s discharge through the procedure set forth herein is not possible and the employee occupies a sensitive position will the case be handled as a security matter.
3. Acts of perversion are defined, for the purpose of this letter, as abnormal sexual acts, including but not limited to homosexuality. _
_ 4. At this time the primary source of information concerning such alleged actions are the arrest records received by the Department from the Federal Bureau of Investigation, through the U.'S. Civil Service Commission. It is stressed that in many cases the record is one of arrest only, and due regard must be taken as to the limited nature of this information, pending the securing of additional data.
5. The appropriate processing of these cases is primarily a Command responsibility. Since, however, the basis for action is the suitability or unsuitability of the employee for employment based on character qualifications, the civilian personnel officer is regarded as the appropriate staff officer concerned.
a. Cases received from the Civil Service Commission by the Office of the Administrative Assistant will be forwarded to the Provost Marshal General, Washington, D.C., for processing through command channels.
b. Necessary investigations will be performed by the Provost Marshal of the appropriate Command.
6. Concerning the specific procedure on the part of the employing office, experience to date has indicated several courses of action are feasible, depending on the individual concerned, collateral information available, or the need to secure additional information.
a. It will generally be desirable to conduct an investigation and subsequently to discuss the situation with the employee. Action as to resignation, discharge, or retention rests on the assessment of the facts. The arrest record may be discussed with the employee prior to investigation if the facts are sufficient to warrant such. Such a discussion with the employee may lead to resignation.
b. In the processing of resignation, there will be shown on Form SF-50, “Notification of Personnel Action” under “Remarks” the following notation, “Resignation pending investigation (suitability).” Removal because of record will be processed in accordance with applicable Civilian Personnel Regulations. Resignations based on charges should be noted in accordance with the following instructions:
(1) If the employee was removed for cause or discharged, resigned to avoid removal, resigned or was otherwise separated under circumstances which reflect on his suitability for reemployment, give sufficient details in the notification of final disposition of the case (referred to in paragraph 6c below) so that when notifications of such actions are prepared for the Civil Service Commission, the Commission will be able to determine reemployment eligibility and retirement rights. This information must be given for persons serving in positions excepted under Schedule A or B of the Civil Service rules, or excepted by law, as well as for employees in the competitive service.
(2) It may be desirable, in the notice to the employee, to refer to the letter of charges by symbols and date; however, such a reference is not sufficient for the purposes of the notification to the Commission.
(3) The separation shall not be shown as “with prejudice” or “without prejudice.”
c.' Upon completion of each case involving alleged perversion, regardless of origin, the Civil Service Commission transmittal form will be completed indicating the action taken, and forwarded direct to the Civil Service Commission office specified on the transmittal form, or if no Civil Service Commission transmittal form is attached, a letter will be forwarded to the appropriate Civil Service Commission Regional office indicating the following:
1. Name and date of birth
2. Position title, grade and salary
3. Place of employment
4. Type and date of separation
'5. Type and date of separation if person was not employed at the time the case was received.

A copy of this information will be forwarded direct to the Provost Marshal General, Washington 25, D.C. This report is exempt from Reports Control in accordance with paragraph 4k, AR 305-15.

7. Department of the Army letters, AGAO-S 230.741 (16 June 50) SACPD-D-M, 16 June 1950, and AGAO-S 230.741 (28 Nov 50)SACPD-M, 4 December 1950, subjects as above, and Report of Suitability Determination Reports Control Symbol SACPD-58 contained therein, are rescinded.

28. A copy of the Criminal Investigation Division’s report on Wilson was furnished the Civilian Personnel Officer for the Berlin Command. Upon receiving the report, that officer referred to the directive quoted in the preceding paragraph and planned to proceed in the removal of Wilson in accordance with it. Before any action could be taken in that regard, however, the officer was informed that because the charges involved alleged criminal acts with minors, the Command had determined to 'bring court-martial proceedings against Wilson. The officer accordingly withheld action on removal pending the outcome of the court-martial trial. Had Wilson’s alleged homosexual acts not involved minors, the Civilian Personnel Officer would have proceeded administratively in accordance with the memorandum directive quoted in finding 27, above.

29. On the afternoon of August 20,1956, Wilson’s attorney, Dr. Brandt, delivered the following document to the office of the Civilian Personnel Officer for the Berlin Command:

BEUCE WILSON August 17, 1956
CIVILIAN PEESONNEL OFFICEE
BEELIN COMMAND
APO 742 U.S. AEMY
SIR,
I hereby wish to notify you that I resign my position with the Berlin Command effective 17.00 hours 20 August 1956.
Sincerely,
S/ BEUCE WILSON
BEUCE WILSON

30. At the time that Wilson submitted the above resignation he knew that he was to be confronted with a court-martial trial on August 21,1956. His predominant, although not necessarily his only purpose in submitting the resignation when he did, after consultation with his personal attorney, Dr. Brandt, was to fully and effectively sever all connections with the Army and thereby enable him to contend that the military court was without jurisdiction to try him for the offenses with which he was charged. The resignation was not affirmatively solicited by the Army by way of promise or inducement related to disposition of tbe charges against him or otherwise. The Army authorities had no reason to believe that Wilson intended his resignation to be other than what its terms indicated — a final and complete severance of Army employment as of the date specified. The evidence shows that Wilson was mentally competent to submit a valid resignation at the time that he executed 'his resignation.

31. When the Civilian Personnel Officer saw Wilson’s resignation he immediately notified his superiors. The Staff Judge Advocate and the Army’s trial counsel in the case both sought to prevail on the Civilian Personnel Officer not to accept the resignation until after the conclusion of the upcoming court-martial proceedings. The Civilian Personnel Officer felt that under applicable regulations the Army had no option in the matter; that the resignation was self-executing and had to be accepted as submitted.

32. On August 21, 1958, the court-martial convened with Wilson represented both by military counsel and by his own attorney, Dr. Brandt. At the outset of the proceeding, after the charges and specifications had been read and Wilson asked how he pleaded to them, defense counsel formally moved to dismiss the charges for lack of jurisdiction on the ground that by his resignation, effective the evening before trial, Wilson had removed himself from military jurisdiction. After hearing oral argument the Law Officer denied the motion. Having no other motions, Wilson thereupon entered a plea of guilty to all charges and specifications. After formal acceptance of the plea, the court received Wilson’s evidence in mitigation and extenuation. In addition to an efficiency rating and two letters of professional commendation from military superiors, this consisted of two medical affidavits that were received by stipulation.

The first affidavit was by Dr. Werner Jaffe. It read:

It is hereby stipulated by and between the prosecution and the defense, with the express consent of the accused, that if Dr. Werner Jaffe, 8 Paulsbomer Strasse, Berlin, Germany, were present in court and duly sworn, he would qualify as an expert witness in psychiatry and would testify substantially as follows:
I am presently engaged in the practice of medicine, specializing in psychiatry and neurology in Berlin, Germany. I have studied both in Germany and the United States, have been a resident psychiatrist in an American hospital, and have practised psychiatry in New York City.
Mr. Bruce Wilson was seen by me about five times during the month of July and August 1956 at the 279th Station Hospital in Berlin, Germany, for psychiatric interview. According to his physical constitution, personal development and status, he can be classified as a typical schizoid personality, not to be confused with a schizophrenic. He gives a history of having descended of a family where strictness seemed to be more important than warmth or affection, and he apparently had and has no contact with his family and no real attachment of parent and sibling.
His life appears to have been an unsteady one concerning both his professional and his interpersonal relations. His history indicates that he never had any true and warm attachments for any person or object. I had the impression that the only time he seemed to show some kind of emotion was when he talked of his three dogs, two of which had to be killed during his absence. He is a person without any deep-seated and lasting interpersonal or social relations at all.
He has had hetero- and homosexual relations as well. He never experienced any bind of real love in the broader sense and on a mature level. He never experienced a lasting friendship and does not feel that he belongs to anybody, society, or religion besides himself. His history indicates that all interpersonal, social, or professional experiences or attachments were of short duration and quite superficial. The early development, socialization, sexual attitude, social adjustment, and occupational history are quite significant for a schizoid, self-centered personality. In the field of general behavior, sensorium, and intellectual capacities, Mr. Wilson does not show any abnormal signs. It is my opinion that, at the time of the offenses with which he is charged, he was capable of distinguishing right from wrong and of adhering to the right, and that at the present time he is capable of understanding the nature of the proceedings against him and cooperating in his own defense.
The emotional picture is superficially one of indifference and euphoria. There are, however, underlying anxieties, tensions, and much hostility against the world and society in which the patient feels misunderstood.
Thought contents and thought mechanism are not psychotic. There is no insight that the trouble the patient is in at the moment arose from his abnormal personal •troubles and are not caused by a “backward” society.
Besides the abnormalities mentioned, there are definite psychopathic personality traits. Before and during the interview, the patient mentioned quite often the fact that the room may be wired, that the guard may be listening to the interview, that in the room next to the one we were in a recording machine may be installed, and so forth. Consequently the patient crawled quite frequently about the floor all over the room looking under tables, watching the central heating system, window vents, and so forth.
The patient admits having drunk much alcoholic beverages because of living under nervous strain from overwork in his office. He thinks that the influence of overwork, nervous strain, and drinking habits were responsible for the sexual aberrations which occurred in his home and which finally gave rise to his present difficulties.
Summarizing all the facts known about the early development of Mr. Wilson, of his position in society, his professional ways, his sexual habits, and his kind of thinking, one may call Mr. Wilson a rationalizing, self-centered, schizoid personality, as distinguished from any mental aberration, who, while legally sane, never had and never will have any real deep-seated or true emotionally underlined contact with anything or anybody besides himself..
His incapability of adjusting to any kind of sexuality of a lasting hetero- or even homosexual kind should 'be judged only as a part of a general, almost psychotic disturbance of his personality and the impossibility of any kind of adjustment and normal interpersonal contact. Mr. Wilson should therefore be considered a psychopathic personality on the borderline of schizophrenia.

The second affidavit was by Dr. Horst Bertram. It read:

It is hereby stipulated by and between the prosecution and the defense, with the express consent of the accused, that if Captain H. M. Bertram, Medical Corps, 279th Station Hospital, Berlin, Germany, were present in court and duly sworn, he would qualify as an expert in psychiatry and would testify substantially as follows:
I have conducted psychiatric examination and evaluation of Mr. Bruce Wilson. As a result of my examination, I conclude that at the time of the offenses with which, he is now charged, he was mentally capable of distinguishing right from wrong and of adhering to the right, and that at the present time he is capable of understanding the nature of the proceedings against him and of cooperating in his own defense.
I have further concluded that, although Mr. Wilson is not psychotic, he is a psychopathic personality tending toward and on the borderline of schizophrenia.

33. The court-martial proceeding concluded on August 21, 1956, with the imposition of a sentence of confinement for 10 years at hard labor.

34. On August 23,1956, the convening authority reviewed the court-martial proceedings and approved them except for the sentence, which was reduced to confinement at hard labor for 5 years.

35. On August 24,1956, the Civilian Personnel Officer for the Berlin Command prepared a Form 52, Bequest for Personnel Action, requesting acceptance of Wilson’s resignation effective August 20,1956. On the same date the Commanding Officer of the Berlin Command sent the following telegram to the Commander-in-Chief, U.S. Army, Europe:

IMMED CLAKIFICATION BEQINTPE OF CPB SI AND 700-1 CONCEBNING BESIG SUBMITTED BY EMPLOYEES WHILE UNDEB CONFINEMENT EFF A DATE PBIOB TO TBIAL. IF ACPT OF BESIG MANDATOBY EFF ON PBOPOSED DATE THE POSSIBILITY ABISES THAT MIL COUBT LOSES JUBIS OYEB SUBQ TBIAL BY THE YOLUNTABY ACT OF ACPT BY THE GOYT

36. On September 7, 1956, the Berlin Command received the following telegram in reply:

SC18413 DU 13631 PABA DA ADVISED BY MSG 451910 THAT PBOV CPB E1.2-2C MANDATOBILY APPL AND NO AUTH EXISTS ON WHICH TO BASE EXCEPTION PD BY APPLICATION OF PABA 11D COM MCO CMM CONSIDEBED THAT MIL JUBIS IS NOT LOST BY SEP FBOM BOLLS

37. On September 13, 1956, a Form 50, Notification of Personnel Action, was issued reflecting Wilson’s separation from Army employment, as of August 20, 1956, by reason of his resignation effective that date. Thus the Army acted in reliance on the resignation’s effectiveness to terminate Wilson’s employment. But for the resignation, both the Civilian Personnel Officer and the Assistant Staff Judge Advocate who served as trial counsel in the court-martial proceeding would, under standard practice and procedure, have initiated administrative removal proceedings against Wilson after conclusion of the court-martial proceedings. Such action was not taken because the Army representatives reasonably believed that Wilson had already removed himself from employment by his resignation.

38. On August 24, 1956, Wilson executed a Form 52, Bequest for Personnel Action, requesting that his final salary checks and future correspondence be forwarded to him at a specified California address and further requested transportation of his household goods to a named individual at Coming, California. These requests were complied with.

39. On August 27, 1956, Wilson was released from the Berlin Army Hospital with a diagnosis of “sexual deviate, overt homosexual.”

40. On August 30, 1956, Headquarters, Berlin Command, issued a further order in the court-martial proceeding designating the U.S. Army’s Mannheim, Germany, Stockade as Wilson’s place of confinement pending completion of appellate review of his conviction.

41. Upon Wilson’s arrival at the Mannheim Stockade an Army doctor certified that he had examined him and found him to be physically and mentally fit to perform hard labor.

42. On September 13, 1956, Wilson executed a Form 102, Application for Befund of Betirement Deductions. Under the form caption “Date of Termination of Service” Wilson specified “20 August 1956.” Pursuant to this application, Wilson was paid $2,828.10.

43. By an order issued February 18, 1958, Wilson’s place of confinement was changed from the Mannheim Stockade to the U.S. Disciplinary Barracks, New Cumberland, Pennsylvania.

44. On March 28, 1958, the United States Court of Military Appeals affirmed the court-martial conviction. United, States v. Wilson, 9 USCMA 60.

45. According to the available medical records, Wilson received medical treatment at the Mannheim Stockade on only three occasions; on February 16 and February 18,1957, he was treated for constipation, and on February 28, 1957, he was treated for an ingrown toenail. There is no evidence that during his confinement at the stockade Wilson sought and was denied any other medical treatment. Subsequent tests and examinations at Valley Forge Army Hospital and Fitzsimons Army Hospital revealed that Wilson did contract active tuberculosis at some time during his confinement in the Mannheim Stockade, probably during the latter part of his Stay there.

46. On March 13,1958, upon his arrival at the New Cumberland Barracks, Wilson was given a routine physical examination, including a chest X-ray. The radiographic report stated:

Chest: There are soft, somewhat indistinct nodular infiltrations throughout the upper third of the left lung without demonstrable cavitation. The remainder of the chest is essentially normal except for blunting of the right costophrenic angle, attributed to old pleural thickening,
'Impression: Active chronic inflammatory disease in the left upper lobe is to be excluded.

47. The Army Hospital at New Cumberland diagnosed Wilson’s condition as “Tuberculosis, pulmonary, active, minimal, left apex.”

48. On March 27, 1958, Wilson was transferred to the Valley Forge Army Hospital, Phoenixville, Pennsylvania. The following clinical record, dated April 10, 1958, reflects Wilson’s condition on arrival, the diagnosis and treatment of his tubercular condition, and the recommendation that he be transferred to Fitzsimons Army Hospital. The record stated:

MILITARY HISTORY: None, Has been employed as a Department of the Army civilian worker for a number of years. Has had overseas assignments in the Far East, Near East and Europe.
SOCIAL & FAMILY HISTORY: Habits — Smokes approximately 2 packs of cigarettes daily since age 14 until his confinement in 1956. He now smokes 1 package of cigarettes daily. Family History — No tuberculosis in the family. Usual childhood diseases. Injuries — Broken right collar bone in 1947 with poor healing.
SYSTEMIC REVIEW: ENT — Sinusitis since approximately 1940 with, postnasal drip, nasal secretion and cough. Has had 2 sinus operations. Back — Noted tenderness over his thoracic spine about 3 months ago, which has been continuous. There is aching on flexion of back. Told that he had sugar in his urine a few months ago.
HISTORY OF PRESENT ILLNESS : On routine admission physical examination to the Disciplinary Barracks at New Cumberland on 13 March 58 a chest x-ray revealed a left upper lobe lesion. The patient was transferred to VFAH on 27 March 58 for further evaluation of his pulmonary disease.
He states he had had slight shortness of breath since 1940 and a chronic cough due to postnasal drip and chronic sinusitis. Recently he had noted night sweats which he attributed to his sinusitis. In June 56 at the time of confinement in Germany a complete physical examination was done at the Berlin AH including chest x-rays, gastric sputums and blood tests. He was told there was a scar apparently on the right side, but no active disease. In 1940 the patient states he had “hemorrhage” into his chest cavity due to severe coughing. He was treated for a few days in the hospital with a blood transfusion and had frequent chest taps over a 2 month period which revealed yellowish fluid. This was followed by chronic shortness of breath, but there were no further pulmonary symptoms.
PHYSICAL EXAMINATION ON ADMISSION: Admission weight 132, average weight 132, temperature 98.6, pulse 70, blood pressure 130/70. The patient is a thin, well-developed 54 year old Caucasian male in no acute or chronic distress. Mentally he is clear and cooperative. Positive findings include: Chest — Slightly pidgeon chested with minimal respiratory expansion. Back — Minimal tenderness over the thoracic spine about the level of D7 and D8 with questionable deformity in this area. There is a lipoma over the left scapula, measuring approximately 6-8 cms in diameter, which is non-tender. Extremities — There is limitation of abduction of the right shoulder to 90 degrees, apparently due to imperfect position of the right clavicular fracture. Skin — Tattoo of a butterfly over the right scapular area. LABORATORY FINDINGS: Intermediate PPD positive 2+, histoplasmin, coccidiodin and blastomycin skin tests negative. A sputum examination for AFB dated 2 April 58 and a bronchial aspiration on 3 April 58 were positive on concentrate. Cultures of these are pending. A bronchoscopy performed on 3 April 58 showed marked angulation of the left bronchus with upward retraction of the left main stem bronchus. No endobronchial disease seen.
X-EAY FINDINGS: A 14 x 17 transfer film of the chest dated 13 March 58 and the admission film to VFAH on 27 March 58 show a soft, nodular infiltration scattered throughout the upper 3rd of the left lung from apex to the 4th left anterior rib level within the 2nd left anterior interspace there is an irregular radio-lucency measuring 1x2 cms in diameter, which probably represents cavitation. In the region of the right middle lobe, adjacent to the heart there is a similar infiltration and there is blunting of the right costophrenic angle with straightening of the right diaphragm. The right clavicle shows evidence of an old fracture with mild position. X-ray of the spine on 28 March 58 is within normal limits.
ADDENDUM TO LABOEATOBY DATA: ECG on 28 March 58 within normal limits. Fasting blood sugar on 28 March 58 93 mgs %. Urinalysis showed rare WBC and 10-15 EBCs per HPF. On 28 March 58. Cardiolipin microflocculation test showed weak reaction and cardio-lipin complement fixation test no reaction on 28 March 50.
CONSULTATIONS: 8 April 58: Orthopedic Clinic for evaluation of pain and tenderness in the thoracic spine region. Diagnosis: Postural back strain. Becom-mendation: Posture training, extension exercises and re-x-ray in eight weeks.
COUESE IN THE HOSPITAL: This 54 year old Caucasian male was admitted to VFAH on 27 March 58 with a transfer diagnosis of tuberculosis, pulmonary, minimal, active, left apex. His case was reviewed at the Initial Therapy Conference on 1 April 58 and the diagnosis changed to moderately advanced tuberculosis of the right middle lobe and left upper lobe. He was started on antituberculous chemotherapy, consisting of PAS, 12 gms daily, INH, 16 mgs per kilogram (950 mgs) daily and pyridoxine, 100 mgs daily which have been continued to date. Since this patient will require long term hospitalization and treatment it has been recommended that he be transferred to Fitzsimons AH for further therapy.
DIAGNOSES: 1. 0033 Tuberculosis, pulmonary, moderately advanced, left upper lobe, right middle lobe, active at least 1 month. LOD: DNA
2. 2144 Lipoma, left back, (date of onset unknown). LOD: DNA
3. XYIIIxy (Onset about January 1958) Postural back strain in region of T-6 thru T-10. Improved. LOD: DNA
OPERATIONS:
3 April 1958 2Í63 Bronchoscopy with aspiration. % plus 2% Pontocaine.

49. On April 28,1958, Wilson was admitted to Fitzsimons Army Hospital at Denver, Colorado. As a patient there he was given thorough and appropriate examinations and treatment for tuberculosis and such other complaints as he had.

50. While at Fitzsimons Wilson filed a petition for a writ of habeas corpus based on an alleged lack of court-martial jurisdiction. On November 10, 1958, the United States District Court for the District of Colorado dismissed the petition on the finding that the military court did have jurisdiction under Article 2(11) of the Uniform Code of Military Justice. United States ex rel. Wilson v. Bohlander, 167 F. Supp. 791. Wilson seasonably appealed denial of the petition to the Court of Appeals for the Tenth Circuit. Meanwhile, on January 13, 1958, the United States District Court for the District of Columbia had denied a similar petition by a civilian employee of the Air Force who had been tried and convicted by a court-martial for stealing Government property in Morocco. United States ex rel. Guagliardo v. McElroy, 158 F. Supp. 171. On September 12, 1958, a divided Court of Appeals, Judge Burger dissenting, reversed on the finding of no court-martial jurisdiction over a civilian employee. 259 F. 2d 927. In another development, on November 20, 1958, the Third Circuit affirmed a District Court’s denial of habeas corpus to an accountant employed by the Army in France who had been convicted by court-martial of unpremeditated homicide and sentenced to confinement. Grisham v. Taylor, 261 F. 2d 204, rev'd 361 U.S. 278 (1960). The Government petitioned for certiorari in Guagliardo in view of tibe conflict with. Grisham. The Court granted certiorari, 359 U.S. 904 (1959), and because of that action accepted review in Wilson’s case prior to argument on the appeal pending before the Tenth Circuit. 359 U.S. 906 (1959).

51. On January 18,1960, with Justices Frankfurter, Harlan, Whittaker and Stewart dissenting, the Supreme Court reversed in Wilson v. Bohlander, 361 U.S. 281.

52. While Wilson was pursuing the habaes corpus proceeding in court his physical condition continued to improve under care and treatment at Fitzsimons. On June 18, 1959, the hospital commander wrote the Army’s Surgeon General as follows:

1. Mr. Bruce Wilson, '55-year-old (former civilian employee) general prisoner, #25818, has been under treatment at this hospital since 29 April 1958 after approximately one month of observation and treatment at Valley Forge Army Hospital. He was sentenced to confinement in August 1956 and is now scheduled to be released in May 1960.
2. His primary diagnosis is “tuberculosis, pulmonary, moderately advanced, upper lobe, left lung, inactive for three months (Jun 1959); exercise status IIIA.” He also has a chronic duodenal ulcer with an episode of hemorrhage several months ago, but now improved. The main problem medically, at present, concerns the surgical repair of bilateral, direct, inguinal hernias, which have been present for more than one year. Our Chief, Department of Surgery has recommended and the prisoner would desire surgical repair of these hernias since they do interfere with full activity on ambulatory status.
3. This patient has been far from a model prisoner. He has regularly refused parole, which had been offered most recently this month, on the basis that by accepting parole he would admit Department of the Army jurisdiction of his prisoner status. This problem is pending study through an appeal to the U.S. Supreme Court and at this time no date for appearance has been scheduled. In the meantime we have been requested by the Provost Marshal General, as well as the Surgeon General’s 'Office, to keep this prisoner patient at this hospital although his pulmonary tuberculosis is now in that stage clinically where he could be returned to a U.S. Disciplinary Barracks. He would not be able to do any manual labor, however, because of his hernias.
4. If surgery is undertaken, the surgeons recommend a three-month interval between operations which might prolong his hospitalization in case the court decision were rendered soon.
5. Bequest decision as to whether or not we should proceed to operate on this prisoner’s hernias.

53. On June 30, 1959, the Surgeon General replied as follows:

1. It is recommended that the prisoner not be operated upon to repair inguinal hernias unless complications requires this as an emergency operation.
2. Since the prisoner may be released at any time it would seem inappropriate to give him an elective operation which might prolong his hospitalization. His admission to Fitzsimons Army Hospital was granted primarily for a contagious disease and for emergency reasons. The prisoner’s lack of cooperation, the liability to the government if the patient is not satisfied with the results of surgery are additional factors that were considered.

54. During his hospital confinement Wilson twice refused, in May 1958 and June 1959, to apply for parole because of his belief that to do so would constitute an acknowledgment of the court-martial’s jurisdiction over him.

55. As reflected by a clinical record of January 19, 1960, Wilson’s tuberculosis had been arrested and all medication discontinued. The clinical record described Wilson’s overall physical condition on January 19, 1960, as follows:

19 Jan 60Since previous summary of 6 May 59 patient has remained asymptomatic as regards to his pulmonary disease. He has been continuously on chemotherapy, INH1500 mgms and Pyridoxine 100 mgms daily. He has been on antituberculous drugs for a total of 21 months, to date. Patient’s X-rays have remained essentially unchanged except for minor contraction since 4 Sep 58 and the patient is therefore considered inactive 10 months. His most recent X-ray is dated 1 Jan 60. Patient was presented to the Section Conference on 18 Jan 60 and it was the decision of the Section that the patient has completed the necessary antituberculosis chemotherapy and that he could, therefore, be considered discharged as a hospital case and his chemotherapy discontinued. This was accomplished on 19 Jan 60 and all medications discontinued.
There was no further evidence of gastrointestinal bleeding and the hemoglobin remained within normal limits. Most recent determination of patient’s hematocrit, 1 Dec 59 was 44. All other laboratory studies remain within normal limits and all cultures for AFB have continued negative with the most recent specimen being obtained 19 Oct 59. The patient continued to complain of mild intermittent discomfort in his fingers and the repeat X-rays, 19 Aug 59, showed peri-articular cystic radio-lucencies around both distal and proximal interpha-langeal joints of both hands, slightly greater on the right. These changes were considered non-diagnostic, however. Symptomatic therapy consisting of ASA prn was sufficient to relieve these complaints. The patient was seen in the Surgical Clinic, 21 Sep 59 regarding possible surgery for bilateral inguinal hernia but surgery was felt not indicated. The patient was fitted for a truss and experienced some relief of his local discomfort. Patient was also seen in the Ophthalmology Clinic on 24 Sep 59 with the diagnosis of bilateral senile immature cataracts which required no therapy but suggested continued observation.
Additional Becommendations: It is recommended that patient has received a complete course of antituberculous chemotherapy and that routine follow-up X-rays and bacteriological studies be obtained. It is recommended that X-rays be obtained every three months for the first year and then approximately once a year by the patient through his private physician. It is further recommended that patient be kept on a bland-type diet and receive follow-up care for previously symptomatic duodenal ulcer through his private physician. No surgical treatment is recommended at this time for bilateral hernia although again private medical opinion may be at variance with this.
Follow up by the patient as required. It is recommended that the patient take ASA, 0.6 gm. prn for intermittent pains in the fingers. No further follow-up for this will be necessary. Follow-up examination for cataracts is recommended at the patient’s discretion.
Add. Diagnoses: 240-912 Degenerative joint disease, multiple, due to unknown cause, (osteoarthritis) bilateral, hands. Treated. Unchanged.
6. x20-797 Senile cataracts, immature, bilateral. Untreated. Unchanged.
Type of Discharge: MUB

56. On January 25, 1960, Wilson was discharged from Fitzsimons and on February 9,1960, pursuant to the Supreme Court’s decision in his case, was released from military control.

57. At no time during his confinement was Wilson denied any medical attention requested by him.

58. At no time during his confinement or thereafter did Wilson assert to anyone in the Army that his resignation of August 17, 1956, was void for reasons of involuntariness or otherwise.

59. Under date of March 14, 1960, Wilson wrote the following letter:

Office of the Comptroller
Berlin Command
A.P.0.742
New York, New York
Dear Sir:
I hereby request that I 'be restored to my position as Auditor, G.S.-ll, with all in-grade promotions, back pay, and all other benefits which I may be entitled to as a result of my illegal confinement in August 1956 which has been declared unconstitutional by the United States Supreme Court (‘361 U.S. 281).
It is hereby requested that you acknowledge receipt of this letter and advise me accordingly.

60. On April 7, 1960, the Civilian Personnel Branch of the Berlin Command Headquarters acknowledged Wilson’s letter as follows:

Mr. Bruce Wilson
c/o Lawrence J. Simmons
318Shoreham Building
Washington 5, D.C.
Dear Mr. Wilson:
This is to acknowledge your letter of 14 March 1960, ’addressed to the Berlin Command Comptroller. Your letter has been forwarded to higher headquarters for consideration.
Sincerely yours,
[/s/3 WILLIAM K. LAWSON
WILLIAM K. LAWSON
Civilian Personnel Officer

61. On May 18, 1960, the Berlin Command Headquarters responded to Wilson’s letter as follows:

Mr. Bruice Wilson
c/o Lawrence <T. Simmons
318 Shoreham Building
Washington 5, D.C.
Dear Mr. Wilson:
Reference is made to my interim letter of 7 April 1960, acknowledging your letter of 14 March 1960. It has been determined that the Supreme Court Decision does not support your claim for restoration to your former position.
Sincerely yours,
C/s/] WILLIAM K. LAWSON
WILLIAM K. LAWSON
Civilian Personnel Officer
62. The regulations relevant to the issues in this case are as follows:
CIVILIAN PERSONNEL REGULATIONS (CPR):
CPR R1.2, Personnel Actions—
2-1.5. * * * Certain actions which are mandatory in nature, * * * e.q., resignations, and are processed merely as a matter of record, may be approved to be effective retroactively. * * *
CPR Sl.2, Actions Initiated by Employees—
2-2.5. (3) * * * if an employee chooses to submit a resignation prior to the completion of another type of separation action in his case, the resignation must be accepted. See HO Comp. Gen. 8%1.
2-2.¿. The effective date of a resignation will be the close of business of the last day the employee is present for duty, except in the following cases:
(3) When an employee has been placed in a nonpay status and submits a resignation without returning to duty, the effective date of the resignation will be the close of business on the date specified in the resignation, or the date the resignation is received at the installation, whichever is earlier.
ARMY REGULATIONS (AR):
AR 633-5, APPREHENSION AND CONFINEMENT—
3.d. Casual confinement. Military prisoners may 'be temporarily confined in any Army or Air Force stockade, rehabilitation training center, disciplinary barracks, or similar Navy confinement facility, pending transportation or other disposition. The confinement of prisoners in disciplinary barracks pending their trial by court-martial is not authorized unless such prisoners are serving previously adjudged court-martial sentences to confinement. Prisoners, while hospitalized, normally will be held in hospital prisoner wards.
21. Medical attention, a. Prisoners reporting sick will receive medical attention * * *.
26.5. Complaints. Prisoners will be permitted to address oral or written complaints through proper channels to Army officials who have the authority to correct the complaint or alleged wrong.
SR 210-188-1, INSTALLATIONS — GUARDHOUSES, STOCKADES, AND HOSPITAL PRISON WARDS—
9. Confinement provisions.
c. Procedure. — The following action will be taken when a person is confined:
(7) Each prisoner will be examined by a medical officer within 24 hours after his confinement. The results of this examination will be recorded on DD Form 503 (Medical Examiner’s Report) (fig. 9).

16. Medical services. — Prisoners will be given medical and dental services identical to those provided for other military personnel.

a. Under the supervision of a medical officer, facilities for outpatient medical care of prisoners may be maintained in the confinement facility when practicable.
b. Sick call will be held each day in accordance with AR 345-415 and AFL 160-11, and at a time which will not interfere with the employment or training of prisoners.
c. Hospitalized prisoners will be confined in the hospital prison ward or in a ward designated by the hospital commander.
d. Prisoners whose actions indicate an abnormal lack of control, psychiatric maladjustment, or irresponsibility, will be given a special medical examination. A record will be made of such examinations and a copy furnished the confinement officer for the prisoner’s 201 file jacket.
e. The hospital prison ward will be operated under the direction of the medical officer designated by the commanding officer of the hospital in all matters pertaining to medical care and treatment, and under the confinement officer in all matters relating to the police of the ward, discipline, custody, and safekeeping of prisoner patients.

CONCLUSION OF 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 not entitled to recover and the petition is dismissed. 
      
       In -the order granting the rehearing the Court invited discussion by counsel on Teargument of four specified questions. Two of them were: “The relevance, for purposes of court-martial jurisdiction over civilians in time of peace, of any distinctions between civilians employed by the armed forces and civilian dependents” ; and “The relevance, for purposes of court-martial jurisdiction over civilian dependents overseas in time of peace, of any distinctions between major crimes and petty offenses.”
     
      
       A district court had denied plaintiff’s petition for a writ of habeas corpus. United States ex rel. Wilson v. Bohlander, 167 F. Supp. 791 (D. Colo. 1958).
     
      
       To tie extent that plaintiff also contenéis that at the same time he was suffering mental Illness requiring treatment, his position is directly contradicted by both the results of the extensive psychiatric examinations conducted by his own specialist as well as the Army at the Berlin hospital, and by the evidence of his mental state during subsequent hospitalizations.
     