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*fn*: March 24, 1976.


Certiorari to the United States Court of Appeals for the Ninth Circuit.

Rehnquist, Burger, White, Blackmun, Powell, Stewart, Marshall, Brennan, Stevens took no part in the consideration or decision of the cases. Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist; Stevens took no part in the consideration or decision of the case.

Author: Rehnquist

[ 425 U.S. Page 28]

 MR. JUSTICE REHNQUIST delivered the opinion of the Court.

In February 1973 plaintiffs*fn1 - then enlisted members of the United States Marine Corps - brought this class action in the United States District Court for the Central District of California challenging the authority of the military to try them at summary courts-martial without providing them with counsel. Five plaintiffs*fn2 had been charged with "unauthorized absences"*fn3 in violation of Art. 86, UCMJ, 10 U.S.C. § 886, convicted at summary courts-martial, and sentenced, inter alia, to periods of confinement ranging from 20 to 30 days at hard labor. The other three plaintiffs, two of whom were charged, inter alia, with unauthorized absence and one with assault, Art. 128, UCMJ, 10 U.S.C. § 928, had been ordered to stand trial at summary courts-martial which had not been convened. Those who were convicted had not been provided counsel - those who were awaiting trial had been informed that counsel would not be provided. All convicted plaintiffs were informed prior to trial that they would not be afforded counsel and that they could refuse trial by summary court-martial if they so desired. In the event of such refusal their cases would be referred to special courts-martial at which counsel would be provided. All plaintiffs consented in writing to proceed to trial by summary court-martial, without

[ 425 U.S. Page 29]

     counsel.*fn4 Plaintiffs' court-martial records were reviewed and approved*fn5 by the Staff Judge Advocate pursuant to Art. 65 (c), UCMJ, 10 U.S.C. § 865 (c). Plaintiffs did not file a petition for review with the Judge Advocate General of the Navy pursuant to Art. 69, UCMJ, 10 U.S.C. § 869.*fn6

In the District Court, plaintiffs brought a class action seeking habeas corpus (release from confinement), an

[ 425 U.S. Page 30]

     injunction against future confinement resulting from uncounseled summary court-martial convictions, and an order vacating the convictions of those previously convicted. S

The District Court allowed the suit to proceed as a class action, expunged all of plaintiffs' convictions, released all plaintiffs and all other members of their class*fn7 from confinement, and issued a worldwide injunction against summary courts-martial without counsel. Because of our disposition of this case on the merits, we have no occasion to reach the question of whether Fed. Rule Civ. Proc. 23, providing for class actions, is applicable to petitions for habeas corpus, I see Harris v. Nelson, 394 U.S. 286 (1969), or whether the District Court properly determined that its remedial order was entitled to be enforced outside of the territorial limits of the district in which the court sat.

The Court of Appeals vacated the judgment of the District Court, and remanded the case for reconsideration in light of the Court of Appeals' opinion in Daigle v. Warner, 490 F.2d 358 (CA9 1973). Daigle had held that there was no Sixth Amendment right to counsel in summary courts-martial, and likewise held that there was no absolute Fifth Amendment due process right to counsel in every case in which a military defendant might be imprisoned. However, citing Gagnon v. Scarpelli, 411 U.S. 778 (1973), it did hold that counsel was required where the "accused makes a request based on a timely and colorable claim (1) that he has a defense, or (2) that there are mitigating circumstances, and the assistance of counsel is necessary in order adequately to

[ 425 U.S. Page 31]

     present the defense or mitigating circumstances." Daigle made an exception from this general rule for cases in which counsel "is not reasonably available," in which instance it would not be required. 490 F.2d, at 365. We granted certiorari. 419 U.S. 895 (1974).


The UCMJ provides four methods for disposing of cases involving offenses committed by servicemen: the general, special, and summary courts-martial, and disciplinary punishment administered by the commanding officer pursuant to Art. 15, UCMJ, 10 U.S.C. § 815. General and special courts-martial resemble judicial proceedings, nearly always presided over by lawyer judges with lawyer counsel for both the prosecution and the defense.*fn8 General courts-martial are authorized to award any lawful sentence, including death. Art. 18, UCMJ, 10 U.S.C. § 818. Special courts-martial may award a bad-conduct discharge, up to six months' confinement at hard labor, forfeiture of two-thirds pay per month for six months, and in the case of an enlisted member, reduction to the lowest pay grade, Art. 19, UCMJ, 10 U.S.C. § 819. Article 15 punishment, conducted personally by the accused's commanding officer, is an

[ 425 U.S. Page 32]

     administrative method of dealing with the most minor offenses. Parker v. Levy, 417 U.S. 733, 750 (1974).*fn9

The summary court-martial occupies a position between informal non-judicial disposition under Art. 15 and the courtroom-type procedure of the general and special courts-martial. Its purpose, "is to exercise justice promptly for relatively minor offenses under a simple form of procedure." Manual for Courts-Martial [*] 79a (1969) (MCM). It is an informal proceeding conducted by a single commissioned officer with jurisdiction only over noncommissioned officers and other enlisted personnel. Art. 20, UCMJ, 10 U.S.C.§ 820. The presiding officer acts as judge, factfinder, prosecutor, and defense counsel. The presiding officer must inform the accused of the charges and the name of the accuser and call all witnesses whom he or the accused desires to call.*fn10 MCM [*] 79d (1). The accused must consent to trial

[ 425 U.S. Page 33]

     by summary court-martial; if he does not do so, trial may be ordered by special or general court-martial.

The maximum sentence elements which may be imposed by summary courts-martial are: one month's confinement at hard labor; 45 days' hard labor without confinement; two months' restriction to specified limits; reduction to the lowest enlisted pay grade; and forfeiture of two-thirds pay for one month. Art. 20, UCMJ, 10 U.S.C. § 820.*fn11


The question of whether an accused in a court-martial has a constitutional right to counsel has been much debated*fn12 and never squarely resolved. See Reid v. Covert, 354 U.S. 1, 37 (1957). Dicta in Ex parte Milligan, 4 Wall. 2, 123 (1866), said that "the framers of the Constitution, doubtless, meant to limit the right of trial by

[ 425 U.S. Page 34]

     jury, in the sixth amendment, to those persons who were subject to indictment or presentment in the fifth." In Ex parte Quirin, 317 U.S. 1, 40 (1942), it was said that "'cases arising in the land or naval forces'... are expressly excepted from the Fifth Amendment, and are deemed excepted by implication from the Sixth."

We find it unnecessary in this case to finally resolve the broader aspects of this question, since we conclude that even were the Sixth Amendment to be held applicable to court-martial proceedings, the summary court-martial provided for in these cases was not a "criminal prosecution" within the meaning of that Amendment.*fn13

This conclusion, of course, does not answer the ultimate question of whether the plaintiffs are entitled to counsel at a summary court-martial proceeding, but it does shift the frame of reference from the Sixth Amendment's guarantee of counsel "[i]n all criminal prosecutions" to the Fifth Amendment's prohibition against the deprivation of "life, liberty, or property, without due process of law."

Argersinger v. Hamlin, 407 U.S. 25 (1972), held that the Sixth Amendment's provision for the assistance of counsel extended to misdemeanor prosecutions in civilian courts if conviction would result in imprisonment. A

[ 425 U.S. Page 35]

     summary court-martial may impose 30 days' confinement at hard labor, which is doubtless the military equivalent of imprisonment. Yet the fact that the outcome of a proceeding may result in loss of liberty does not by itself, even in civilian life, mean that the Sixth Amendment's guarantee of counsel is applicable. In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the respondent faced the prospect of being sent to prison as a result of the revocation of his probation, but we held that the revocation proceeding was nonetheless not a "criminal proceeding." We took pains in that case to observe:

"[T]here are critical differences between criminal trials and probation or parole revocation hearings, and both society and the probationer or parolee have stakes in preserving these differences.

"In a criminal trial, the State is represented by a prosecutor; formal rules of evidence are in force; a defendant enjoys a number of procedural rights which may be lost if not timely raised; and, in a jury trial, a defendant must make a presentation understandable to untrained jurors. In short, a criminal trial under our system is an adversary proceeding with its own unique characteristics. In a revocation hearing, on the other hand, the State is represented, not by a prosecutor, but by a parole officer with the orientation described above; formal procedures and rules of evidence are not employed; and the members of the hearing body are familiar with the problems and practice of probation or parole." Id., at 788-789.

In re Gault, 387 U.S. 1 (1967), involved a proceeding in which a juvenile was threatened with confinement. The Court, although holding counsel was required, went on to say:

"'We do not mean... to indicate that the hearing

[ 425 U.S. Page 36]

     to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.'" Id., at 30.

The Court's distinction between various civilian proceedings, and its conclusion that, notwithstanding the potential loss of liberty, neither juvenile hearings nor probation revocation hearings are "criminal proceedings," are equally relevant in assessing the role of the summary court-martial in the military.

The summary court-martial is, as noted above, one of four types of proceedings by which the military imposes discipline or punishment. If we were to remove the holding of Argersinger from its civilian context and apply it to require counsel before a summary court-martial proceeding simply because loss of liberty may result from such a proceeding, it would seem all but inescapable that counsel would likewise be required for the lowest level of military proceeding for dealing with the most minor offenses. For even the so-called Art. 15 "non-judicial punishment," which may be imposed administratively by the commanding officer, may result in the imposition upon an enlisted man of "correctional custody" with hard labor for not more than 30 consecutive days.*fn14 10 U.S.C. § 815 (b).*fn15 But we think that

[ 425 U.S. Page 37]

     the analysis made in cases such as Gagnon and Gault, as well as considerations peculiar to the military, counsel against such a mechanical application of Argersinger.

Admittedly Gagnon is distinguishable in that there the defendant had been earlier sentenced at the close of an orthodox criminal prosecution. But Gault is not so distinguishable: there the juvenile faced possible initial confinement as a result of the proceeding in question, but the Court nevertheless based its conclusion that counsel was required on the Due Process Clause of the Fourteenth Amendment, rather than on any determination that the hearing was a "criminal prosecution" within the meaning of the Sixth Amendment.

It seems to us indisputably clear, therefore, that even in a civilian context the fact that a proceeding will result in loss of liberty does not ipso facto mean that the proceeding is a "criminal prosecution" for purposes of the Sixth Amendment. Nor does the fact that confinement will be imposed in the first instance as a result of that proceeding make it a "criminal prosecution." When we consider in addition the fact that a summary court-martial occurs in the military community, rather than the civilian community, we believe that the considerations supporting the conclusion that it is not a "criminal prosecution" are at least as strong as those which were held dispositive in Gagnon and Gault.

The dissent points out, post, at 56-57, n. 6, that in

[ 425 U.S. Page 38]

     Gault the Court gave weight to the rehabilitative purpose of the juvenile proceedings there involved, and that no such factor is present in summary courts-martial. Undoubtedly both Gault and Gagnon are factually distinguishable from the summary court-martial proceeding here. But together they surely stand for the proposition that even in the civilian community a proceeding which may result in deprivation of liberty is nonetheless not a "criminal proceeding" within the meaning of the Sixth Amendment if there are elements about it which sufficiently distinguish it from a traditional civilian criminal trial. The summary court-martial proceeding here is likewise different from a traditional trial in many respects, the most important of which is that it occurs within the military community. This latter factor, under a long line of decisions of this Court, is every bit as significant, and every bit as entitled to be given controlling weight, as the fact in Gagnon that the defendant had been previously sentenced, or the fact in Gault that the proceeding had a rehabilitative purpose.

We have only recently noted the difference between the diverse civilian community and the much more tightly regimented military community in Parker v. Levy, 417 U.S. 733, 749 (1974). We said there that the UCMJ "cannot be equated to a civilian criminal code. It, and the various versions of the Articles of War which have preceded it, regulate aspects of the conduct of members of the military which in the civilian sphere are left unregulated. While a civilian criminal code carves out a relatively small segment of potential conduct and declares it criminal, the Uniform Code of Military Justice essays more varied regulation of a much larger segment of the activities of the more tightly knit military community." Ibid. Much of the conduct proscribed by the military is not "criminal" conduct in the civilian sense of the word. Id., at 749-751.

[ 425 U.S. Page 39]

     Here, for example, most of the plaintiffs were charged solely with "unauthorized absence," an offense which has no common-law counterpart and which carries little popular opprobrium. Conviction of such an offense would likely have no consequences for the accused beyond the immediate punishment meted out by the military, unlike conviction for such civilian misdemeanors as vagrancy or larceny which could carry a stamp of "bad character" with conviction.*fn16

[ 425 U.S. Page 40]

     By the same token, the penalties which may be meted out in summary courts-martial are limited to one month's confinement at hard labor, 45 days' hard labor without confinement, or two months' restriction to specified limits.*fn17 Sanctions which may be imposed affecting a property interest are limited to reduction in grade with attendant loss of pay, or forfeiture or detention of a portion of one month's pay.

Finally, a summary court-martial is procedurally quite different from a criminal trial. In the first place, it is not an adversary proceeding. Yet the adversary nature of civilian criminal proceedings is one of the touchstones of the Sixth Amendment's right to counsel*fn18 which we

[ 425 U.S. Page 41]

     extended to petty offenses in Argersinger v. Hamlin, 407 U.S. 25 (1972).

Argersinger relied on Gideon v. Wainwright, 372 U.S. 335 (1963), where we held:

"[I]n our adversary system of criminal justice, any person haled into court... cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society...." Id., at 344.

The function of the presiding officer is quite different from that of any participant in a civilian trial. He is guided by the admonition in [*] 79a of the MCM: "The function of a summary court-martial is to exercise justice promptly for relatively minor offenses under a simple form of procedure. The summary court will thoroughly and impartially inquire into both sides of the matter and will assure that the interests of both the Government and the accused are safeguarded." The presiding officer is more specifically enjoined to attend to the interests of the accused by these provisions of the same paragraph:

"The accused will be extended the right to cross-examine these witnesses. The summary court will aid the accused in the cross-examination, and, if the accused desires, will ask questions suggested by the accused. On behalf of the accused, the court will obtain the attendance of ...

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