LELAND CARTER STANFORD, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE
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The court held that the appellant's claims were premature due to failure to exhaust administrative remedies and that, even if exhausted, the claims would fail as constitutional rights to grand jury indictment and jury trial do not apply to armed forces cases.
Appellant, a pro se litigant, sought to nullify his dishonorable discharge from the armed forces, alleging denial of constitutional rights to grand ju…
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PER CURIAM:
In this pro se case appellant has failed to file a brief within the time fixed by Rule 31, FRAP, and it is therefore appropriate to dispose of this ease summarily pursuant to Rule 9(c) (2) of this Court. Stout v. Broom, 5 Cir., 1969, 406 F. 2d 758.
Appellant filed a complaint asking the district court to nullify his dishonorable discharge from the armed forces on grounds that he was denied his “constitutional rights” of indictment by a grand jury and a trial by a petit jury. Upon motion of the United States, the complaint was dismissed. We affirm.
Appellant has failed to allege exhaustion of the administrative remedies afforded under the provisions of 10 U.S.C. § 1552. To consider his claims before he has exhausted those remedies would be premature. Beard v. Stahr, 1962, 370 U.S. 41, 82 S.Ct. 1105, 8 L.Ed.2d 321; Tuggle v. Brown, 5 Cir., 1966, 362 F. 2d 801, cert. denied 385 U.S. 941, 87 S.Ct. 311, 17 L.Ed.2d 220 (1966); McCurdy v. Zuckert, 5 Cir., 1966, 359 F. 2d 491.
However, even if appellant had exhausted such remedies, he would not be entitled to relief. While the fifth amendment guarantees the right to indictment by grand jury, it also states an exception for cases arising in the armed forces. Ex parte Quirin, 1942, 317 U.S. 1, 63 S. Ct. 1, 87 L.Ed. 3; Owens v. Markley, 7 Cir., 1961, 289 F. 2d 751.
Similarly, the guarantee of the right to trial by jury has been held inapplicable to court-martial proceedings. Whelchel v. McDonald, 1950, 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed. 141, rehearing denied 340 U.S. 923, 71 S.Ct. 356, 95 L.Ed. 666; Ex parte Quirin, supra.
Affirmed.
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ex parte Quirin v. Cox, 317 U.S. 1 (U.S. 1942)
- Whelchel v. McDonald, 340 U.S. 122 (U.S. 1950)
- Beard v. Stahr, 370 U.S. 41 (U.S. 1962)
- McCURDY v. Zuckert, 359 F.2d 491 (5th Cir. 1966)
- Stout v. Sheriff, George A. Broom, 406 F.2d 758 (5th Cir. 1969)
- Tuggle v. Brown, 362 F.2d 801 (5th Cir. 1966)
- Robertson Rock Bit Co., Inc. v. Hughes Tool Co., 340 U.S. 923 (U.S. 1951)
- Rucker v. Johnson, 385 U.S. 941 (U.S. 1966)
- Hilliard v. Texas, 385 U.S. 941 (U.S. 1966)
- Owens v. Markley, 289 F.2d 751 (7th Cir. 1961)