413 U.S.

665
93 S.Ct. 2926
37 L.Ed.2d 873

James Roy GOSA, Petitioner,

v.
J. A. MAYDEN, Warden. John W. WARNER, Secretary of the
Navy, Petitioner, v. John W. FLEMINGS.
Nos. 716314, 711398.
Argued Dec. 4, 1972.
Decided June 25, 1973.

Syllabus
In No. 716314, petitioner was tried by court-martial and convicted of
rape. His conviction was affirmed by the Air Force Board of Review, and
the Court of Military Appeals denied a petition for review. At no time
during the trial and review proceedings did petitioner question the
jurisdiction of the Military tribunal. Thereafter, following the decision in
O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291
(holding that when a serviceman is charged with a crime that is not
'service connected' he is entitled to indictment by a grand jury and trial by
jury in a civilian court), petitioner sought a writ of habeas corpus in
Federal District Court which was denied, the court concluded that the
standards promulgated in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967,
18 L.Ed.2d 1199 precluded retroactive application of O'Callahan. On
appeal, in face of the Government's concession that the offense was not
service connected, the Court of Appeals affirmed. In No. 711398,
respondent, while absent without leave in 1944, was apprehended in
Pennsylvania while in an automobile stolen in New Jersey. He was tried
by court-martial in New York on charges of unauthorized absence from
his duty station during wartime and theft of an automobile from a civilian.
He pleaded guilty, and after serving two years' confinement was
dishonorably discharged in 1946. He instituted suit in 1970, relying on
O'Callahan, seeking to compel the Secretary of the Navy to overturn his
court-martial conviction for auto theft and to correct his military records
with respect to his dishonorable discharge. The District Court held that the
car theft was not service connected in the O'Callahan sense and that

O'Callahan was to be applied retroactively. The Court of Appeals

affirmed. Held: The judgment in No. 716314 is affirmed, and the
judgment in No. 711398 is reversed. Pp. 672693.
No. 716314, 450 F.2d 753, affirmed; No. 711398, 458 F.2d 544,
reversed.
Mr. Justice BLACKMUN, joined by THE CHIEF JUSTICE, Mr. Justice
WHITE, and Mr. Justice POWELL, concluded that:

1. The question in O'Callahan was the appropriateness of the exercise of

jurisdiction by a military forum, pursuant to an Act of Congress, over a
nonservice-connected offense when balanced against the guarantees of the Fifth
and Sixth Amendments. Pp. 672 678.

2. Application of the three-pronged test of Stovall v. Denno, supra, '(a) the

purpose to be served by the new standards, (b) the extent of the reliance by law
enforcement authorities on the old standards, and (c) the effect on the
administration of justice of a retroactive application of the new standards,'
requires that O'Callahan be accorded prospective effect only. Pp. 678685.

3. Respondent's claim in No. 711398 that he was deprived of the right to trial
in the vicinage, as guaranteed by Art. III, 2, cl. 3, not raised before the
military court, lacks merit. General court-martial jurisdiction, derived from Art.
I, is not restricted territorially to a particular State or district; the vicinage
requirement has primary relevance to trial by jury; and respondent has not
demonstrated prejudice. Pp. 685686.

Mr. Justice DOUGLAS concluded, in No. 716314, that the case should be
reargued on the question whether the 'jurisdiction' of the military tribunal,
being not contested, had become res judicata; and in No. 711398, that
respondent committed a 'service connected' crime. Pp. 686691.

Mr. Justice REHNQUIST concluded, in No. 716314, that although the prior
Court decisions do not support the holding that O'Callahan should not be
applied retroactively, O'Callahan was wrongly decided and should be
overruled; and, in No. 711398, that any crime committed by a serviceman
during the time of declared war is 'service connected' and that he can be validly
tried by court-martial for that offense. P. 692.
Mr. Justice STEWART concluded, in No. 711398, that respondent, a

Mr. Justice STEWART concluded, in No. 711398, that respondent, a

serviceman who deserted his post during a time of congressionally declared war
and stole an automobile was guilty of a 'service connected' offense and was
properly tried before a court-martial under O'Callahan. P. 693. John R.
Saalfield, Jacksonville, Fla., for petitioner James Roy Gosa.

Solicitor Gen. Erwin N. Griswold for respondent J. A. Mayden and petitioner

John W. Warner.

Michael Meltsner, New York City, for respondent John W. Flemings.

Mr. Justice BLACKMUN announced the judgments of the Court and an

opinion in which THE CHIEF JUSTICE, Mr. Justice WHITE and Mr. Justice
POWELL join.

10

In O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291, decided
June 2, 1969, this Court, by a 53 vote, held that when a person in military
service is charged with a crime that is not 'service connected,' id., at 272, 89
S.Ct., at 1690, the defendant is entitled, despite his military status, to the
benefit of 'two important constitutional guarantees,' id., at 273, 89 S.Ct., at
1691, namely, indictment by a grand jury1 and trial by jury in a civilian court.

11

The Court noted that O'Callahan was 'properly absent from his military base
when he committed the crimes with which he is charged,' ibid.; that there was
no connection between his military duties and the crimes; that the offenses
were committed off the military post or enclave; that the victim was not
performing any duty relating to the military; that the situs of the crimes was not
occupied territory or under military control; that they were peacetime offenses;
that the civilian courts were open; and that the offenses involved no question of
the flouting of military authority, post security, or the integrity of military
property.

12

Later, in Relford v. Commandant, 397 U.S. 934, 90 S.Ct. 958, 25 L.Ed.2d 114
(1970), we granted certiorari 'limited to retroactivity and scope of O'Callahan v.
Parker.' When Relford was decided, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d
102 (1971), we held that an offense committed on a military post by an
individual in service, in violation of the security of another person or property
on that post, was 'service connected,' within O'Callahan's language. Relford's
offenses so qualified. His case, thus, went off on the scope of O'Callahan and
did not reach the issue of retroactivity. We concluded that the latter issue,
although having 'important dimensions, both direct and collateral,' was 'better
resolved in other litigation where, perhaps, it would be solely dispositive of the

case.' Id., at 370, 91 S.Ct., at 657. One of the cases, Gosa, now before us
presents that issue solely. The other case, Flemings, presents the issue, but not
solely.
13

* No. 716314. In December 1966 petitioner James Roy Gosa, an airman third
class, stationed at Warren Air Force Base in Wyoming, was tried by a
courtmartial and convicted of rape, in violation of Art. 120 of the Uniform
Code of Military Justice, 10 U.S.C. 920.

14

The offense took place the preceding August, in what the respondent has stated
to be peacetime,2 when Gosa was in the city of Cheyenne. At the time, he was
officially off duty and absent from the base on authorized leave. He was not in
uniform. The victim was not connected with the military or related to military
personnel. Shortly after the incident Gosa was arrested by civilian authorities.
He was unable to make bond and was detained pending a preliminary hearing.
The complaining witness did not appear at the hearing. Gosa, accordingly, was
released. He was taken into military custody, however, and charged with the
Art. 120 violation. A general court-martial was convened. Gosa was tried and
convicted. He was sentenced to 10 years' imprisonment at hard labor, forfeiture
of pay and allowances, reduction in rank to the lowest pay grade of airman
basic, and a bad conduct discharge. As required by Art. 61 of the Code, 10
U.S.C. 861, the convening authority then referred the case to his staff judge
advocate for review. The staff judge advocate's recommendation that the
findings and sentence of the general court-martial be approved were adopted by
the convening authority. Pursuant to Art. 66 of the Code, 10 U.S.C. 866, the
case was referred to an Air Force Board of Review. That Board affirmed the
conviction and sentence. On August 16, 1967, the United States Court of
Military Appeals denied a petition for review. 17 U.S. C.M.A. 648. The case
thereupon became final, Art. 76 of the Code, 10 U.S.C. 876, subject, of
course, to the habeas corpus exception recognized in United States v.
Augenblick, 393 U.S. 348, 349350, 89 S.Ct. 528, 530, 21 L.Ed.2d 537
(1969).

15

At no time throughout the trial and the review proceedings did Gosa raise any
question as to the power of the military tribunal to try him.

16

Following the Court's decision in O'Callahan, Gosa filed an application for a

writ of habeas corpus in the United States District Court for the Northern
District of Florida seeking his release from the Federal Correctional Institution
at Tallahassee where he was then confined.3 Subsequently, he filed with the
United States Court of Military Appeals a motion to vacate his sentence and
conviction; this was treated as a petition for reconsideration and was denied by

a divided vote with accompanying opinions. 19 U.S.C.M.A. 327, 41 C.M.R.

327 (1970). The habeas application also was denied by the District Court upon
its determination that the standards promulgated in Stovall v. Denno, 388 U.S.
293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967), and related cases,
precluded retroactive application of O'Callahan. 305 F.Supp. 1186
(N.D.Fla.1969). On appeal, in the face of a Government concession that the
alleged offense was not service connected, the Court of Appeals for the Fifth
Circuit, one judge dissenting, affirmed. 450 F.2d 753 (1971).
17

No. 711398. In 1944, when the United States was formally at war,
respondent James W. Flemings, then age 18 and a seaman second class, was
stationed at the Naval Ammunition Depot in New Jersey. On August 7 of that
year Flemings failed to return on time from an authorized three-day leave. He
was apprehended by Pennsylvania police while he was in an automobile stolen
two days earlier in Trenton, New Jersey. Flemings was turned over to military
authorities. He was charged with unauthorized absence from his duty station
during wartime and with theft of an automobile 'from the possession of . . . a
civilian.'4

18

A court-martial was convened at the Brooklyn Navy Yard. Flemings,

represented by a reserve lieutenant, pleaded guilty to the two charges. He was
sentenced to three years' imprisonment, reduction in rank to apprentice seaman,
and dishonorable discharge. After two years' confinement he was released and
was dishonorably discharged in October 1946.

19

In 1970, Flemings instituted suit in the United States District Court for the
Eastern District of New York, relying on O'Callahan and seeking to compel the
Secretary of the Navy to overturn the 1944 court-martial conviction for auto
theft and to correct his military records with respect to the dishonorable
discharge. He did not challenge the validity of his conviction for being absent
without leave.

20

The District Court held that the auto theft offense was not service connected in
the O'Callahan sense and that O'Callahan was to be applied retroactively to
invalidate the court-martial conviction on that charge. 330 F.Supp. 193 (EDNY
1971). The Court of Appeals for the Second Circuit affirmed. 458 F.2d 544
(1972).

21

We granted certiorari, in both cases to resolve the conflict. 407 U.S. 920 and
919, 92 S.Ct. 2467 and 2461, 32 L.Ed.2d 805 (1972).5

II
22

O'Callahan v. Parker, to use the words Mr. Justice Stewart employed in Desist
v. United States, 394 U.S. 244, 248, 89 S.Ct. 1030, 1032, 22 L.Ed.2d 248
(1969), was 'a clear break with the past.' In O'Callahan the Court concluded
that, in harmonizing the express guarantees of the Fifth and Sixth Amendments,
with respect to grand jury indictment and trial by a civilian jury, with the power
of Congress, under Art. I, 8, cl. 14, of the Constitution, 'To make Rules for
the Government and Regulation of the land and naval Forces,' a military
tribunal ordinarily may not try a serviceman charged with a crime that has no
service connection. Although the Court in O'Callahan did not expressly overrule
any prior decision, it did announce a new constitutional principle, and it
effected a decisional change in attitude that had prevailed for many decades.
The Court long and consistently had recognized that military status in itself was
sufficient for the exercise of court-martial jurisdiction. Kinsella v. Singleton,
361 U.S. 234, 240241, 243, 80 S.Ct. 297, 300301, 302, 4 L.Ed.2d 268
(1960); Reid v. Covert, 354 U.S. 1, 2223, 77 S.Ct. 1222, 1233, 1 L.Ed.2d
1148 (1957); Grafton v. United States, 206 U.S. 333, 348, 27 S.Ct. 749, 752, 51
L.Ed. 1084 (1907); Johnson v. Sayre, 158 U.S. 109, 114, 15 S.Ct. 773, 775, 39
L.Ed. 914 (1895); Smith v. Whitney, 116 U.S. 167, 184185, 6 S.Ct. 570, 579,
29 L.Ed. 601 (1886); Coleman v. Tennessee, 97 U.S. 509, 24 L.Ed. 1118
(1879); Ex parte Milligan, 4 Wall. 2, 123, 18 L.Ed. 281 (1866). Indeed, in
Grafton, 206 U.S., at 348, 27 S.Ct., at 752, the Court observed, 'While . . . the
jurisdiction of general courts-martial extends to all crimes, not capital,
committed against public law by an officer or soldier of the Army within the
limits of the territory in which he is serving, this jurisdiction is not exclusive,
but only concurrent with that of the civil courts.'

23

The new approach announced in O'Callahan was cast, to be sure, in

'jurisdictional' terms, but this was 'lest 'cases arising in the land or naval forces,
or in the Militia, when in actual service in time of War or public danger,' as
used in the Fifth Amendment, be expanded to deprive every member of the
armed services of the benefits of an indictment by a grand jury and a trial by a
jury of his peers' (footnote omitted). 395 U.S., at 272 273, 89 S.Ct., at 1690
1691. The Court went on to emphasize that the 'power of Congress to make
'Rules for the Government and Regulation of the land and naval Forces,' Art. I,
8, cl. 14, need not be sparingly read in order to preserve those two important
constitutional guarantees. For it is assumed that an express grant of general
power to Congress is to be exercised in harmony with express guarantees of the
Bill of Rights.' Id., at 273, 89 S.Ct., at 1691. The basis for the 'jurisdictional'
holding in O'Callahan obviously was the increasing awareness and recognition
of the important constitutional values embodied in the Fifth and Sixth

Amendments. Faced with the need to extend the protection of those

Amendments as widely as possible, while at the same time respecting the
power of Congress to make 'Rules for the Government and Regulation of the
land and naval Forces,' the Court, id., at 265, 89 S.Ct., at 1686, heeded the
necessity for restricting the exercise of jurisdiction by military tribunals to
those crimes with a service connection as an appropriate and beneficial
limitation 'to the narrowest jurisdiction deemed absolutely essential to
maintaining discipline among troops in active service.' Toth v. Quarles, 350
U.S. 11, 22, 76 S.Ct. 1, 8, 100 L.Ed. 8 (1955).
24

That O'Callahan dealt with the appropriate exercise of jurisdiction by military

tribunals is apparent from Kinsella v. Singleton, supra, where the Court ruled
that the Necessary and Proper Clause, Art. I, 8, cl. 18, does not enable
Congress to broaden the term 'land and naval Forces' in Art. I, 8, cl. 14, to
include a civilian dependent accompanying a member of the Armed Forces
overseas. In such a case, it was held, a civilian dependent is entitled to the
safeguards of Art. III and of the Fifth and Sixth Amendments, and conviction
by court-martial is not constitutionally permissible:

25

'But the power to 'make Rules for the Government and Regulation of the land
and naval Forces' bears no limitation as to offenses. The power there granted
includes not only the creation of offenses but the fixing of the punishment
therefor. If civilian dependents are included in the term 'land and naval Forces'
at all, they are subject to the full power granted the Congress therein to create
capital as well as noncapital offenses. This Court cannot diminish and expand
that power, either on a case-by-case basis or on a balancing of the power there
granted Congress against the safeguards of Article III and the Fifth and Sixth
Amendments. Due process cannot create or enlarge power. . . . It deals neither
with power nor with jurisdiction, but with their exercise.' 361 U.S., at 246, 80
S.Ct., at 303.

26

Although the decision in O'Callahan emphasizes the difference in procedural

protections respectively afforded by the military and the civilian tribunals, the
Court certainly did not hold, or even intimate, that the prosecution in a military
court of a member of the Armed Services for a nonservice-connected crime was
so unfair as to be void ad initio. Rather, the prophylactic rule there formulated
'created a protective umbrella serving to enhance' a newly recognized
constitutional principle. Michigan v. Payne, 412 U.S. 47, 54, 93 S.Ct. 1966,
1970, 36 L.Ed.2d 736 (1973). That recognition and effect are given to a
theretofore unrecognized and uneffectuated constitutional principle does not, of
course, automatically mandate retroactivity. In Williams v. United States, 401
U.S. 646, 651, 91 S.Ct. 1148, 1151, 28 L.Ed.2d 388 (1971), Mr. Justice White

made it clear, citing Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14
L.Ed.2d 601 (1965), that the Court has 'firmly rejected the idea that all new
interpretations of the Constitution must be considered always to have been the
law and that prior constructions to the contrary must always be ignored.' See
Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374, 60
S.Ct. 317, 318, 84 L.Ed. 329 (1940). And in Johnson v. New Jersey, 384 U.S.
719, 728, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882 (1966), it was said that 'the
choice between retroactivity and nonretroactivity in no way turns on the value
of the constitutional guarantee involved.'
27

Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and
Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), are
illustrative of the context of the O'Callahan decision. In Duncan, the Court held
that since 'trial by jury in criminal cases is fundamental to the American
scheme of justice, . . . the Fourteenth Amendment guarantees a right of jury
trial in all criminal cases whichwere they to be tried in a federal court
would come within the Sixth Amendment's guarantee' (footnote omitted). 391
U.S., at 149, 88 S.Ct., at 1447. In Bloom the Court held that serious criminal
contempts may not be summarily punished and that they are subject to the
Constitution's jury trial provision. 391 U.S., at 201210, 88 S.Ct., at 1481
1486. In those two cases the Court ruled that a state court exercising
jurisdiction over a defendant in a serious criminal or criminal contempt case,
but failing to honor a request for a jury trial, in effect was without jurisdiction.
Yet in DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308
(1968), the Court by a per curiam opinion, denied retroactive application to
those new constitutional holdings. The Court thus concluded that it did not
follow that every judgment rendered in a Duncan or in a Bloom situation, prior
to the decisions in those cases, was so infected by unfairness as to be null and
void.

28

The same analysis has pertinent application to these very similar cases, and it
leads us to the conclusion that the validity of convictions by military tribunals,
now said to have exercised jurisdiction inappropriately over nonserviceconnected offenses is not sufficiently in doubt so as to require the reversal of all
such convictions rendered since 1916 when Congress provided for military
trials for civilian offenses committed by persons in the Armed Services. Act of
Aug. 29, 1916, c. 418, 39 Stat. 652.

29

The clearly opposing and contrasting situation is provided by the argument

made by respondent Flemings to the effect that the retroactivity of O'Callahan
is to be determined and is controlled by United States v. United States Coin &
Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971). In that case the

Court held that its decisions in Marchetti v. United States, 390 U.S. 39, 88 S.Ct.
697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 88 S.Ct.
709, 19 L.Ed.2d 906 (1968), precluding the criminal conviction of a gambler
who properly asserted his Fifth Amendment privilege against self-incrimination
as a reason for his failure to register and to pay the federal gambling tax, would
be applied retroactively so as to invalidate forfeiture proceedings under 26
U.S.C. 7302 ensuing upon the invalid conviction. To suggest that Coin &
Currency is controlling is to ignore the important distinction between that case
and these. There the Court determined that retrospective application of
Marchetti and Grosso was required because they 'dealt with the kind of conduct
that cannot constitutionally be punished in the first instance,' 401 U.S., at 723,
91 S.Ct., at 1046; it was conduct 'constitutionally immune from punishment' in
any court. Id., at 724, 91 S.Ct.At 1046.
30

In O'Callahan, on the other hand, the offense was one for which the defendant
was not so immune in any court. The question was not whether O'Callahan
could have been prosecuted; it was, instead, one related to the forum, that is,
whether, as we have said, the exercise of jurisdiction by a military tribunal,
pursuant to an act of Congress, over his nonservice-connected offense was
appropriate when balanced against the important guarantees of the Fifth and
Sixth Amendments. The Court concluded that in the circumstances there
presented the exercise of jurisdiction was not appropriate, and fashioned a rule
limiting the exercise of court-martial jurisdiction in order to protect the rights to
indictment and jury trial. The Court did not hold that a military tribunal was and
always had been without authority to exercise jurisdiction over a nonserviceconnected offense.

III
31

The foregoing conclusion, of course, does not end our inquiry as to whether
O'Callahan should be accorded retroactive application.

32

In two cases decided earlier this Term, retrospectivity of a new constitutional

decision was also an issue. Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35
L.Ed.2d 29 (1973), concerned successive municipal and state prosecutions for
alleged offenses arising from the same circumstances, and a claim of double
jeopardy, based on this Court's intervening decisions in Benton v. Maryland,
395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), and Waller v. Florida, 397
U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). We recognized that in
Linkletter the Court was 'charting new ground' in the retrospectivity area, 409
U.S., at 507, 93 S.Ct., at 877, that 'Linkletter and succeeding cases,' ibid.,
obviously including Stovall v. Denno, 388 U.S., at 297, 87 S.Ct., at 1970,

established standards for determining retroactivity; that Robinson, however, did

not readily lend itself to the Linkletter analysis; that Linkletter and its related
cases dealt with procedural rights and trial methods; and that guarantees not
related to procedural rules 'cannot, for retroactivity purposes, be lumped
conveniently together in terms of analysis.' Robinson v. Neil, 409 U.S., at 508,
93 S.Ct., at 878.
33

In Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973), we
were concerned with the retroactivity of North Carolina v. Pearce, 395 U.S.
711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and the standards it promulgated
with respect to an increased judge-imposed sentence on retrial after a successful
appeal. We there employed the Stovall criteria and held that Pearce was not to
be applied retroactively.

34

In the present cases we are not concerned, of course, with procedural rights or
trial methods, as is exemplified by the decisions concerning the exclusionary
rule (Linkletter), the right of confrontation (Stovall), adverse comment on a
defendant's failure to take the stand (Tehan v. Shott, 382 U.S. 406, 86 S.Ct.
459, 15 L.Ed.2d 453 (1966)), and a confession's admissibility (Johnson v. New
Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966)). But neither are
we concerned, as we were in Robinson, with a constitutional right that operates
to prevent another trial from taking place at all. Our concern, instead, is with
the appropriateness of the exercise of jurisdiction by a military forum.

35

These cases, therefore, closely parallel DeStefano v. Woods, supra, where the
Court denied retroactive application to Duncan v. Louisiana, supra, and Bloom
v. Illinois, supra, in each of which a right to a jury trial had been enunciated. In
denying retroactivity, the integrity of each of the earlier proceedings, without a
jury, was recognized. The test applied in DeStefano was the Stovall test. 392
U.S., at 633635, 88 S.Ct., at 20952096. Similarly here, then, the threeprong test of Stovall has pertinency, and we proceed to measure Gosa's and
Flemings' claims by that test directed to '(a) the purpose to be served by the
new standards, (b) the extent of the reliance by law enforcement authorities on
the old standards, and (c) the effect on the administration of justice of a
retroactive application of the new standards.' 388 U.S., at 297, 87 S.Ct., at
1970.

36

A. Purpose. 'Foremost among these factors is the purpose to be served by the

new constitutional rule.' Desist v. United States, 394 U.S. 244, 249, 89 S.Ct.
1030, 1033, 22 L.Ed.2d 248 (1969). In his opinion for the plurality in Williams
v. United States, 401 U.S., at 653, 91 S.Ct., at 1152, Mr. Justice White
emphasized that where 'the major purpose of new constitutional doctrine is to

overcome' a trial aspect 'that substantially impairs its truth-finding function,' the
new rule is given complete retroactive effect, and '(n)either good-faith reliance'
nor 'severe impact on the administration of justice' suffices to require
prospectivity.
37

Our initial concern, therefore, is whether the major purpose of the holding in
O'Callahan was to overcome an aspect of military trials which substantially
impaired the truth-finding process and brought into question the accuracy of all
the guilty verdicts rendered by military tribunals. At the same time, however,
the fact that a new rule tends incidentally to improve or enhance reliability does
not in itself mandate the rule's retroactive application. The Court in Johnson v.
New Jersey, 384 U.S., at 728, 86 S.Ct., at 1778, repeated what had been
suggested in Linkletter and Tehan, that 'we must determine retroactivity 'in each
case' by looking to the peculiar traits of the specific 'rule in question" and

38

'(f)inally, we emphasize that the question whether a constitutional rule of

criminal procedure does or does not enhance the reliability of the factfinding
process at trial is necessarily a matter of degree. . . . We are thus concerned
with a question of probabilities and must take account, among other factors, of
the extent to which other safeguards are available to protect the integrity of the
truth-determining process at trial.' 384 U.S., at 728729, 86 S.Ct., at 1778
1779.

39

See Michigan v. Payne, 412 U.S., at 55, 96 S.Ct., at 1970 1971. Thus,
retroactivity is not required by a determination that the old standard was not the
most effective vehicle for ascertaining the truth, or that the truth-determining
process has been aided somewhat by the new standard, or that one of several
purposes in formulating the new standard was to prevent distortion in the
process.

40

Although the opinion in O'Callahan was not uncritical of the military system of
justice, and stressed possible command influence and the lack of certain
procedural safeguards, 395 U.S., at 263266, 89 S.Ct., at 16851687, the
decision there, as has been pointed out above, certainly was not based on any
conviction that the court-martial lacks fundamental integrity in its truthdetermining process.6 Indeed, our subsequent ruling in Relford itself indicates
our conclusion that military criminal proceedings are not basically unfair, for
Relford clearly approves prosecution in a military court, of what is otherwise a
civilian crime, when factors are present that establish the offense's 'service
connection.' 401 U.S., at 364 365, 91 S.Ct., at 654655. See Mr. Chief Justice
Warren's paper, The Bill of Rights and the Military, 37 N.Y.U.L.Rev. 181, 188
189 (1962).

41

It, of course, would demean the constitutional rights to indictment and trial by a
jury to assert that those guarantees do not play some role in assuring the
integrity of the truth-determining process. '(T)he right to jury trial generally
tends to prevent arbitrariness and repression.' DeStefano v. Woods, 392 U.S., at
633, 88 S.Ct., at 2095. The same mission is fulfilled by the indictment right.
But a policy directed at the prevention of arbitrariness and repression is not
confined to the truth-determining process. It is concerned, as well, with a larger
range of possible evils: prosecution that is malicious, prosecutorial
overzealousness, excessiveness of sentence and the like. These very ingredients
were also present in the background in Duncan and Bloom. Yet, the Court did
not find it necessary to hold retroactive the rights newly established by those
cases.

42

Nothing said in O'Callahan indicates that the major purpose of that decision
was to remedy a defect in the truth-determining process in the military trial.
Rather, the broad guarantees of the Fifth Amendment right to grand jury
indictment and the Sixth Amendment right to jury trial weighed heavily in the
limitation of the exercise of court-martial jurisdiction to "the least possible
power adequate to the end proposed," Toth v. Quarles, 350 U.S. 11, 23, 76
S.Ct. 1, 8, 100 L.Ed. 8 (1955), a phrase taken from Anderson v. Dunn, 6
Wheat. 204, 231, 5 L.Ed. 242 (1821).

43

The purpose behind the rule enunciated in O'Callahan thus does not mandate
retroactivity.

44

B. Reliance. With respect to this factor, we repeat what has been emphasized
above, namely, that, before O'Callahan, the law was settled that the exercise of
military jurisdiction over an offense allegedly committed by a member of the
Armed Forces was appropriately based on the military status of the defendant
and was not dependent on the situs or nature of the offense. There was
justifiable and extensive reliance by the military and by all others on the
specific rulings of this Court. Military authorities were acting appropriately
pursuant to provisions of the Uniform Code of Military Justice, Art. 2, 10
U.S.C. 802, and its predecessors, and could not be said to be attempting to
usurp civilian authority. The military is not to be faulted for its reliance on the
law as it stood before O'Callahan and for not anticipating the 'clear break with
the past' that O'Callahan entailed. The reliance factor, too, favors prospectivity.

45

C. Effect on the Administration of Justice. In DeStefano v. Woods, 392 U.S., at

634, 88 S.Ct., at 2095, the Court, in considering the retroactivity of Duncan and
Bloom, attached special significance to the fact that 'the effect of a holding of
general retroactivity on law enforcement and the administration of justice

would be significant, because the denial of jury trial has occurred in a very
great number of cases.' The very same factor is present with like significance
here, for the military courts have been functioning in this area since 1916,
appropriately assuming from this Court's successive holdings, that they were
properly exercising jurisdiction in cases concerning nonservice-connected
offenses allegedly committed by servicemen.
46

A mere glance at the reports of the United States Court of Military Appeals
discloses the volume of prosecutions in military tribunals. Retrospective
application of O'Callahan would not only affect the validity of many criminal
convictions but would result in adjustments and controversy over back pay,
veterans' benefits, retirement pay, pensions, and other matters. In addition, the
task of establishing a service connection on the basis of a stale record or in a
new trial would prove formidable if not impossible in many cases, since at the
time the record was made the question whether there was a service connection
was of no importance.

47

Gosa and Flemings press upon us a recent law review article. Blumenfeld,
Retroactivity After O'Callahan: An Analytical and Statistical Approach, 60
Geo.L.J. 551 (1972). The author of that article concludes: (1) On the basis of a
sampling of cases reviewed by the Court of Military Appeals and the Army
Court of Military Review between June 2, 1969 (the date of O'Callahan), and
December 31, 1970, only about 1% of the general court-martial cases were
service connected. Id., at 580 n. 147. (2) '(V)ery few' servicemen have sought
collateral review of their convictions since O'Callahan was decided. Id., at 578
n. 141. The author asserts, however: 'Even if the number of requests for relief
sent to military departments should exceed expectations, the Defense
Department, with an abundance of personnel and computers, could develop
procedures to insure a quick review.' Id., at 572. (3) The military has necessary
machinery to process claims and petitions for review. Id., at 571575. (4) The
financial impact of a ruling of retroactivity would not be great since most
servicemen convicted of nonservice-connected crimes would not be entitled to
retirement or pension pay and, in any event, the average return should not
exceed $1,500. Id., at 574575.

48

In Mercer v. Dillon, 19 U.S.C.M.A. 264, 41 C.M.R. 264 (1970), the United

States Court of Military Appeals, a tribunal composed of civilian judges, 10
U.S.C. 867, but uniquely familiar with the military system of justice, spoke in
another vein.7 A pertinent factor, too, is that until Flemings' case emerged in
the Second Circuit, the civilian and the military courts had ruled against
applying O'Callahan retroactively; thus there was no decisional impetus to
encourage litigation.

49

50

We must necessarily also consider the impact of a retroactivity holding on the

interests of society when the new constitutional standard promulgated does not
bring into question the accuracy of prior adjudications of guilt. Wholesale
invalidation of convictions rendered years ago could well mean that convicted
persons would be freed without retrial, for witnesses, particularly military ones,
no longer may be readily available, memories may have faded, records may be
incomplete or missing, and physical evidence may have disappeared. Society
must not be made to tolerate a result of that kind when there is no significant
question concerning the accuracy of the process by which judgment was
rendered or, in other words, when essential justice is not involved.
We conclude that the purpose to be served by O'Callahan, the reliance on the
law as it stood before that decision, and the effect of a holding of retroactivity,
all require that O'Callahan be accorded prospective application only. We so
hold.8

IV
51

Flemings also urges that, because his court-martial proceeding was convened in
Brooklyn, whereas the auto theft took place in New Jersey and his arrest in
Pennsylvania, he was deprived of the right to a trial in the vicinage, as
guaranteed by Art. III, 2, cl. 3, of the Constitution. This claim was not raised
before the military court. Moreover, a military tribunal is an Article I
legislative court with jurisdiction independent of the judicial power created and
defined by Article III. Ex parte Quirin, 317 U.S. 1, 39, 63 S.Ct. 1, 16, 87 L.Ed.
3 (1942); Whelchel v. McDonald, 340 U.S. 122, 127, 71 S.Ct. 146, 149, 95
L.Ed. 141 (1950); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165, 83 S.Ct.
554, 565, 9 L.Ed.2d 644 (1963). General court-martial jurisdiction is not
restricted territorially to the limits of a particular State or district. 1 W.
Winthrop, Military Law and Precedents 104105 (2d ed. 1896). And the
vicinage requirement has primary relevance to trial by jury. In any event,
Flemings has demonstrated no prejudice.

52

The judgment in No. 716314 is affirmed; that in No. 711398 is reversed.

53

It is so ordered.

54

Judgment in No. 716314 affirmed; judgment in No. 711398 reversed.

55

Mr. Justice DOUGLAS, concurring in the result in part in No. 716314 and
concurring in the result in No. 711398.

56

I agree with Mr. Justice STEWART that respondent Flemings committed a

'service connected' crime.1

57

As to the Gosa case I think the case should be put down for reargument on
whether res judicata controls the disposition of the case. The argument that it
does goes as follows:

58

Petitioner Gosa was tried for rape before a military tribunal and convicted. The
case went through the hierarchy of review within the military establishment
and after the conviction and sentence were affirmed, a petition for review was
filed with the Court of Military Appeals (a civilian court created by Congress);
but that court denied review.2 The events described took place in 1966 and
1967. On June 2, 1969, we decided O'Callahan v. Parker, 395 U.S. 258, 89
S.Ct. 1683, 23 L.Ed.2d 291, invalidating the court-martial conviction for rape
committed off the military base by a serviceman who was on leave.

59

O'Callahan in that respect is on all fours with the instant case, for here
petitioner was officially off-duty, in civilian clothes, and was found to have
raped a civilian in no way connected with the military, while he was in
Cheyenne, Wyoming, near Warren Air Force Base but not on the base.

60

O'Callahan was decided in 1969 and in reliance on it petitioner Gosa started

this habeas corpus action3 seeking release from his confinement under the
military sentence.

61

The question whether one of our constitutional decisions should be

retroactively applied has been before us on numerous occasions. Linkletter v.
Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601; Stovall v. Denno, 388
U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199; Desist v. United States,
394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248; DeStefano v. Woods, 392 U.S.
631, 88 S.Ct. 2093, 20 L.Ed.2d 1308.

62

But in all cases to date which involved retroactivity the question has been
whether the court whose judgment is being reviewed should be required in the
interests of substantial justice to retry the accused under the new constitutional
rule announced by the Court after the first trial had been completed but before
the new constitutional decision was announced. The measure applied as to
whether the new rule should be prospective or retroactive4 was the threepronged test stated in Stovall v. Denno, 388 U.S., supra, at 297, 87 S.Ct., 1970.
'The criteria guiding resolution of the question implicates (a) the purpose to be
served by the new standards (b) the extent of the reliance by law enforcement

authorities on the old standards, and (c) the effect on the administrative of
justice of a retroactive application of the new standards.'
63

Here the question is whether a civilian, rather than a military, tribunal should
have tried him. Does the question whether the 'jurisdiction'5 of the military
tribunal can be contested at this late date turn on whether res judicata bars that
inquiry?

64

Petitioner Gosa in the review of his conviction by the military tribunal never
raised the question raised in O'Callahan.6 If he was 'constitutionally immune
from punishment' in any court, we would have the problem presented in United
States v. U.S. Coin & Currency, 401 U.S. 715, 723724, 91 S.Ct. 1041, 1045
1046, 28 L.Ed.2d 434. But petitioner was not tried by a kangaroo court or by
eager vigilantes but by military authorities within the framework established by
Congress in the Uniform Code of Military Justice.

65

The case is somewhat unlike McClaughry v. Deming, 186 U.S. 49, 22 S.Ct.
786, 46 L.Ed. 1049, where a court-martial was constituted of officers of the
regular army who by an Act of Congress were not authorized to sit in judgment
on volunteers. The court-martial was held incompetent to sit on the case
because it acted in plain violation of an Act of Congress. There was therefore
no tribunal authorized by law to render the challenged judgment. Consent to be
so tried could not confer jurisdiction in face of the mandate of the statute. In the
present cases Congress by express provisions of the Code had authorized the
military tribunals to sit in these types of cases.

66

In Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60
S.Ct. 317, 84 L.Ed. 329, municipal debts were readjusted by a federal district
court under an Act of Congress which this Court later held to be
unconstitutional. The later ruling was in Ashton v. Cameron County District,
298 U.S. 513, 56 S.Ct. 892, 80 L.Ed. 1309, where a closely divided Court held
that an extension of the Bankruptcy Act to include a readjustment of the debts
of municipalities and counties was unconstitutional. Petitioner had its debts
readjusted under that Act, which permitted less than all of the outstanding
bondholders to agree to a plan. That plan was consummated before the Ashton
decision. Respondent was one of the nonconsenting bondholders. After the
Ashton decision it brought suit on its bonds. The question before the Court in
the Chicot County Drainage District case was the extent to which the Ashton
case should be made retroactive. The Court, speaking through Mr. Chief
Justice Hughes, said that the proceedings in the District Court 'were conducted
in complete conformity to the statute' and that 'no question had been raised as to
the regularity of the court's action.' 380 U.S., at 375, 60 S.Ct., at 319. Since the

parties had an opportunity to raise the question of invalidity but did not do so,
they 'were not the less bound by the decree because they failed to raise it.' Ibid.
Mr. Chief Justice Hughes added, id., at 377, 60 S.Ct. at 320:
67

'Whatever the contention as to jurisdiction may be, whether it is that the

boundaries of a valid statute have been transgressed, or that the statute itself is
invalid, the question of jurisdiction is still one for judicial determination. If the
contention is one as to validity, the question is to be considered in the light of
the standing of the party who seeks to raise the question and of its particular
application.'

68

He went on to say, id., at 378, 60 S.Ct. at 320:

69

'(R)es judicata may be pleaded as a bar, not only as respects matters actually
presented to sustain or defeat the right asserted in the earlier proceeding, 'but
also as respects any other available matter which might have been presented to
that end'. Grubb v. Public Utilities Commission (281 U.S. 470, 479, 50 S.Ct.
374, 378, 74 L.Ed. 972).'

70

Petitioner claims, as did respondent in the Chicot County Drainage District

case, that the tribunal that first adjudicated the cause acted unconstitutionally.
At the time the military court acted, however, it was assumed to have
'jurisdiction' and its 'jurisdiction' was in no way challenged in the review
proceedings available to petitioner. Did the issue of 'jurisdiction' for that case
therefore become res judicata?

71

There are, in brief, the reasons why res judicata arguably should lead to an
affirmance in the Gosa case. Contrary to intimations in the dissenting opinion I
have reached no position on the merits and would reserve judgment until the
issue was fully explored on reargument.

72

Mr. Justice REHNQUIST, concurring in the judgments.

73

I do not believe that decisions of this Court would support a holding that the
rule announced in O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23
L.Ed.2d 291 (1969), should not be applied retroactively to court-martial
convictions entered before the decision in that case. In O'Callahan, the Court
clearly held that courts-martial did not have jurisdiction to try servicemen for
'non-service connected' crimes. For substantially the reasons stated by my
Brother MARSHALL, I believe that Robinson v. Neil, 409 U.S. 505, 93 S.Ct.
876, 35 L.Ed.2d 29 (1973), and prior decisions mandate that O'Callahan be

applied retroactively.
74

In No. 716314, since I believe that the O'Callahan rule could not in any event
be given only prospective application, the question arises whether the analytical
inquiry sanctioned by that decision should even be undertaken. O'Callahan,
was, in my opinion, wrongly decided, and I would overrule it for the reasons set
forth by Mr. Justice Harlan in his dissenting opinion. 395 U.S., at 274284, 89
S.Ct., at 16911696.

75

In No. 711398, even if O'Callahan were followed, I agree with the views of
my Brother STEWART. The offense was committed during a period of
declared war and furthermore while respondent was absent without official
leave from his military duties. For purposes of the 'service
connected''nonservice connected' dichotomy announced by O'Callahan, I
would hold that any crime committed by a member of the Armed Forces during
time of war is 'service connected,' and that he can validly be tried by a courtmartial for that offense. Cf. Relford v. Commandant, 401 U.S. 355, 91 S.Ct.
649, 28 L.Ed.2d 102 (1971).

76

I therefore concur in the judgments of the Court, and would affirm the
judgment of the Court of Appeals in No. 716314 and reverse that in No. 71
1398.

77

Mr. Justice STEWART, dissenting in No. 716314, Gosa v. Mayden, and

joined by Mr. Justice DOUGLAS, concurring in the result in No. 711398,
Warner v. Flemings.

78

I dissented in O'Callahan v. Parker, 395 U.S. 258, 284, 89 S.Ct. 1683, 1692, 23
L.Ed.2d 291 (1969), and continue to believe that that case was wrongly
decided. Until or unless O'Callahan is overruled, however, I think it must be
given fully retroactive application for the reasons stated in my Brother
MARSHALL's persuasive dissenting opinion, post, this page. Accordingly, I
join his dissenting opinion as it applies to No. 716314, Gosa v. Mayden.

79

But that view, in my opinion, does not dispose of No. 71 1398, Warner v.
Flemings. I think that a serviceman who deserts his post during a time of
congressionally declared war and steals an automobile is guilty of a 'service
connected' offense. Accordingly, I conclude that the respondent Flemings was
properly tried before a court-martial under O'Callahan. Cf. Relford v.
Commandant, 401 U.S. 355, 365, 91 S.Ct. 649, 655, 28 L.Ed.2d 102 (1971).
For this reason I concur in the result reached by the Court in the Flemings case.

80

Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr. Justice
STEWART * join, dissenting.

81

* Mr. Justice BLACKMUN'S plurality opinion, by its efforts to establish that

O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), was
not a decision dealing with jurisdiction in its classic form, implicitly
acknowledges that if O'Callahan were in fact concerned with the adjudicatory

82

powerthat is, the jurisdictional competency1 of military tribunals, its

holding would necessarily be fully retroactive in effect, cf. e.g., Linkletter v.
Walker, 381 U.S. 618, 623, 85 S.Ct. 1731, 1734, 14 L.Ed.2d 601 (1965). The
plurality now puts forth the view that O'Callahan was not concerned with the
true jurisdictional competency of courts-martial but that the decision yielded
merely a new constitutional rule. This characterization of O'Callahan permits
the plurality to apply in this case the three-prong test employed to judge the
retroactivity of new procedural rules under Linkletter and its progeny, see, e.g.,
Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d
248 (1969); Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18
L.Ed.2d 1199 (1967). And, not surprisingly, application of that test leads to the
conclusion that O'Callahan should have only prospective effect. With all due
respect, I must dissent.

83

I am unable to agree with the plurality's characterization of O'Callahan. In my

view, it can only be understood as a decision dealing with the constitutional
limits of the military's adjudicatory power over offenses committed by
servicemen. No decision could more plainly involve the limits of a tribunal's
power to exercise jurisdiction over particular offenses and thus more clearly
demand retroactive application.

A.
84

In holding that O'Callahan is to be given only prospective effect, the plurality

does not reject outright the view that the decision was jurisdictional in nature.
Yet it clearly does reject the contention that O'Callahan dealt with a question of
true jurisdictional competency, for we are told that the decision 'did announce a
new constitutional principle,' ante, at 673, and that it really 'dealt with the
appropriate exercise of jurisdiction by military tribunals,' ante at 674. The
difference between a decision concerning a tribunal's jurisdictional competency
that is, the limits of its adjudicatory powerand 'the appropriate exercise of
(its) jurisdiction' is less than clear to me, at least where, as here, the question of
'appropriateness' ultimately turns on the extent of Congress' constitutional
authority under Art. I, 8, cl. 14, to 'make Rules for the Government and

Regulation of the land and naval Forces.' But whatever the nature of the
distinction that the plurality now seeks to draw, it cannot, in my opinion,
obscure the essential character of the decision in O'Callahan.
85

O'Callahan required this Court to define the class of offenses committed by

servicemen that Congress, under Art. I, 8, cl. 14, could constitutionally
empower military tribunals to try. The nature of the ultimate inquiry there is
plain from the question upon which the Court granted certiorari: "Does a courtmartial, held under the Articles of War, Tit. 10, U.S.C. 801 et seq., have
jurisdiction to try a member of the Armed Forces who is charged with
commission of a crime cognizable in a civilian court and having no military
significance, alleged to have been committed off-post and while on leave, thus
depriving him of his constitutional rights to indictment by grand jury and trial
by a petit jury in a civilian court?" 395 U.S., at 261, 89 S.Ct., at 1685. The
O'Callahan Court's discussion of this issue was consistently couched in terms of
the jurisdiction of military tribunals;2 and, in dissent, Mr. Justice Harlan, too,
framed the issue presented in the unmistakable terms of 'the appropriate
subject-matter jurisdiction of courts-martial,' id., at 276, 89 S.Ct., at 1692. Even
the Court of Appeals in No. 716314, while ultimately holding the O'Callahan
decision to be prospective only, acknowledged that the decision turned upon a
determination of 'lack of adjudicatory power'that 'O'Callahan's foundation,
framework and structure deny to the legislation which breathed the breath of
judicial life into the forum that tried Sgt. O'Callahan, the necessary basis in
constitutional power to reach his type of case.'3 450 F.2d 753, 757 (CA5 1971).
See also United States ex rel. Flemings v. Chafee, 458 F.2d 544, 549550
(CA2 1972).

86

Despite the evident jurisdictional nature of the ultimate issue presented in

O'Callahan, the plurality attempts to analogize this case to DeStefano v. Woods,
392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968), where the Court held
that the decisions in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20
L.Ed.2d 491 (1968), and Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20
L.Ed.2d 522 (1968), were to have only prospective effect. Duncan held that the
Sixth Amendment guarantee of trial by jury in criminal cases had been made
applicable to the States by the Fourteenth Amendment. And Bloom established
the right to jury trial in the context of serious criminal contempt proceedings.
DeStefanolike the other offspring of Linkletter that have applied the threeprong test to determine retroactivityinvolved constitutional rulings that
established new procedures for the conduct of trial or for the use of evidence.
But O'Callahan hardly was such a case.

87

The Court in O'Callahan was not setting forth procedures which the military

was constitutionally required to adopt in its proceedings. Had the Court been
doing so, this would certainly be a different case; the analogy to DeStefano then
might well be appropriate. It is true, as the plurality now points out, that the
O'Callahan Court placed considerable emphasis on the lack of jury trial in the
court-martial system. But it did so only as a part of the general analytic process
of determining the proper reconciliation of the competing jurisdictions of two
essentially distinct 4 judicial systems, namely, the civil and military systems of
justice. The Court's basic concern in this process was the preservationto the
fullest extent possible consistent with the legitimate needs of the militaryof
the fundamental civil rights guaranteed by our Constitution and Bill of Rights.
Those civil rights were, in the Court's words, the 'constitutional stakes in the . . .
litigation.' O'Callahan v. Parker, supra, 395 U.S., at 262, 89 S.Ct., at 1685.
88

Thus, the Court pointed out that one tried before a military tribunal is without
the benefit of not only trial by jury but also indictment by grand jury. Ibid. Nor
are the same rules of evidence and procedure applicable in a military
proceeding, a factor affecting, for example, the defense's access to compulsory
process, id. at 264 n. 4, 89 S.Ct., at 1686. In addition, the Court was concerned
with the fact that the presiding officers at courts-martial do not enjoy the
independence that is thought to flow from life tenure and undiminishable salary
To the contrary, the Court recognized that 'the possibility of influence on the
actions of the court-martial by the officer who convenes it, selects its members
and the counsel on both sides, and who usually has direct command authority
over its members is a pervasive one in military law, despite strenuous efforts to
eliminate the danger.' Id., at 264, 89 S.Ct., at 1686. In short, the Court
concluded that '(a) court-martial is not yet an independent instrument of justice
but remains to a significant degree a specialized part of the overall mechanism
by which military discipline is preserved,' Id., at 265, 89 S.Ct., at 1686.

89

The Court's purpose in considering these factors was not to require changes in
the military system of justice, but rather to illustrate its 'fundamental differences
from . . . the civilian courts,' id., at 262, 89 S.Ct., at 1685, differences that
compelled the Court "to restrict military tribunals to the narrowest jurisdiction
deemed absolutely essential to maintaining discipline among troops in active
service," id., at 265, 89 S.Ct., at 1687, quoting from Toth v. Quarles, 350 U.S.
11, 22, 76 S.Ct. 1, 8, 100 L.Ed. 8 (1955). As a result, the Court concluded that
the 'crime to be under military jurisdiction must be service connected . . .,' 395
U.S., at 272, 89 S.Ct., at 1690, so that the power of Congress under Art. I, 8,
cl. 14, to 'make Rules for the Government and Regulation of the land and naval
Forces,' and also the exemption from the grand jury requirement of the Fifth
Amendment for 'cases arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public danger' are not expanded to

deprive servicemen unjustifiably of their civil rights.5 The Court found that
when an offense is not service connected, the needs of the military are not
significantly implicated and thus that the limits of Congress' constitutional
power over servicemen under Art. I, 8, cl. 14, have been passed, at least in the
context of 'peacetime offenses,' 395 U.S., at 273, 89 S.Ct., at 1691.
90

Certainly the jurisdictional nature of the O'Callahan decision is amply

demonstrated by this Court's previous decision in McClaughry v. Deming, 186
U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049 (1902). There the Court was called upon
to decide 'the power of an officer convening a court-martial for the trial of an
officer of volunteers (reserve troops), to compose that court entirely of officers
of the Regular Army.' Id., at 53, 22 S.Ct., at 788. The Court determined that
Congress had directed by statute that volunteer officers of the Army be tried
only by a court-martial composed of volunteer officers. In light of this
determination the Court concluded:

91

'As to the officer to be tried there was no court, for it seems to us that it cannot
be contended that men, not one of whom is authorized by law to sit, but, on the
contrary, all of whom are forbidden to sit, can constitute a legal court-martial
because detailed to act as such court by an officer who in making such detail
acted contrary to and in complete violation of law. Where does such a court
obtain jurisdiction to perform a single official function? How does it get
jurisdiction over any subject-matter or over the person of any individual? The
particular tribunal is a mere creature of the statute, as we have said, and must be
created under its provisions.' Id., at 64, 22 S.Ct., at 792.

92

In the same vein, the Court elsewhere stated: 'A court-martial is the creature of
statute, and, as a body or tribunal, it must be convened and constituted in entire
conformity with the provisions of the statute, or else it is without jurisdiction.'
Id. at 62, 22 S.Ct., at 791. Because of the flaw in the composition of the courtmartial, a flaw which the Court considered determinative on the issue of the
court-martial's jurisdiction, the Court affirmed a lower court's issuance of a writ
of habeas corpus to secure the officer's release from military custody.
Significantly, this writ was issued at a time when habeas corpus clearly lay
only where the court-martial had 'no jurisdiction over the person of the
defendant or the subject-matter of the charges against him.' Id., at 69, 22 S.Ct.,
at 794. 6 In O'Callahan the Court was not concerned with the composition of a
particular court-martial, but with the fundamental question of the extent of
Congress' constitutional power to establish court-martial jurisdiction over
offenses committed by our servicemen. If the former issue goes to the
jurisdiction of military tribunals, certainly the latter does.

B
93

With this understanding of O'Callahan, I believe, contrary to the plurality's

view, that the retroactive application of our holding there is required by our
prior decisions in Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29
(1973), and United States v. U.S. Coin & Currency, 401 U.S. 715, 722724,
91 S.Ct. 1041, 10451046, 28 L.Ed.2d 434 (1971). Robinson involved the
retroactive application of the decision in Waller v. Florida, 397 U.S. 387, 90
S.Ct. 1184, 25 L.Ed.2d 435 (1970), that the Fifth Amendment's guarantee,
made applicable to the States through the Fourteenth Amendment, that no
person should be put twice in jeopardy for the same offense barred an
individual's prosecution for a single offense by both a State and a municipality
of the State, that is, a legal subdivision of the State. U.S. Coin & Currency held
retroactive the Court's prior determination that the Fifth Amendment privilege
against compulsory self-incrimination barred the prosecution of gamblers for
failure to register and to report illegal gambling proceeds for tax purposes, see
Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968);
Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968).

94

In deciding whether to give retroactive effect to Waller, Marchetti, and Grosso,

the Court rejected contentions that it should apply the three-prong test
employed in cases such as Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18
L.Ed.2d 1199 (1967); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22
L.Ed.2d 248 (1969); and De Stefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20
L.Ed.2d 1308 (1968). In U.S. Coin & Currency, Mr. Justice Harlan, speaking
for the Court explained:

95

'Unlike some of our earlier retroactivity decisions, we are not here concerned
with the implementation of a procedural rule which does not undermine the
basic accuracy of the factfinding process at trial. Linkletter v. Walker, 381 U.S.
618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Tehan v. Shott, 382 U.S. 406, 86
S.Ct. 459, 15 L.Ed.2d 453 (1966); Johnson v. New Jersey, 384 U.S. 719, 86
S.Ct. 1772, 16 L.Ed.2d 882 (1966); Stovall v. Denno, 388 U.S. 293, 87 S.Ct.
1967, 18 L.Ed.2d 1199 (1967). Rather, Marchetti and Grosso dealt with the
kind of conduct that cannot constitutionally be punished in the first instance.'
401 U.S., at 723, 91 S.Ct., at 1045.

96

The Robinson Court adopted essentially the same view of the Waller decision
concerning the Double Jeopardy Clause and multiple prosecutions by different
legal subdivisions of a single sovereign. See 409 U.S., at 508, 93 S.Ct., at 878.
In this case, too, we are concerned, not with 'the implementation of a procedural
rule,' but with an unavoidable constitutional impediment to the prosecution of

particular conduct.
97

In O'Callahan, as has been seen, the ultimate issue was the extent of the
constitutional power that underlies the jurisdiction of military tribunals. Where
an offense lies outside the limits of that power, there exists just as much of a
constitutional impediment to trial by court-martial as there existed to a civilian
trial in Marchetti and Grosso due to the privilege against self-incrimination or in
Waller due to the Double Jeopardy Clause. It cannot be forgotten that military
tribunals are courts of limited jurisdiction. See McClaughry v. Deming, 186
U.S., at 63, 22 S.Ct., at 791; Ex parte Watkins, 3 Pet. 193, 209, 7 L.Ed. 650
(1830). They cannot exercise authority which Congress has not conferred upon
them, much less authority which Congress is without constitutional power to
confer.7 It is this fundamental principle that compels retroactive application of
the decision in O'Callahan.

98

The plurality seeks to distinguish U.S. Coin & Currency and Robinson on the
grounds that the former involved a right that prevented the offender from being
tried at all the latter a right that prevented 'another trial from taking place at all,'
ante, at 679, whereas the underlying issue in this case is merely which
jurisdiction can try offenses committed by servicemen. But these are
distinctions without meaning; they merely reflect the differences in the nature
of the constitutional impediment to trial at issue in each case. The essential
common thread tying these cases together is that each involved, at the least, a
constitutional barrier to trial before the particular forum, regardless of the
fairness of the procedures and the factfinding process of the relevant forum.

99

U.S. Coin & Currency swept broadly, to be sure, for it concerned a

constitutional guarantee that effectively prevented any trial of the offender for
the particular offense. But the nature of the Double Jeopardy Clause at issue in
Robinson is such that the offender may be tried once for a particular offense by
a court of a particular sovereign; it is the second prosecution for the same
offense by another court of the same sovereign that that Clause clearly bars.
Similarly here, a serviceman charged with a nonservice-connected offense is
subject to trial for that offense by civil tribunals, but military tribunals lack the
necessary constitutional power, at least in peacetime, to try such an offense. As
was true in Robinson, this case involves a constitutional barrier to adjudication
of a particular offense by a particular forum, yet in neither case does it follow
that the offender is constitutionally entitled to go unpunished altogether. I fail to
see, therefore, why different rules from those applied only recently in Robinson
should be applied in this case.

100 There is, of course, the additional fact that the Robinson Court left open the

question whether reasonable, official reliance upon a particular rule might

properly be considered 'in determining retroactivity of a nonprocedural
constitutional decision such as Waller.' 409 U.S., at 511, 93 S.Ct., at 879.8 And
in this case the plurality, in attempting to establish that O'Callahan was a "clear
break with the past," ante, at 672, citing Desist v. United States, 394 U.S., at
248, 89 S.Ct., at 1032, and should therefore be applied only prospectively, does
make much of the argument that substantial, justifiable reliance was placed on
pre-O'Callahan law concerning the exercise of court-martial jurisdiction over
servicemen, see ante, at 672673. But I seriously question the relevance of
any inquiry into official reliance on prior law where, as here, the issue is
jurisdictional competency. Even assuming for the moment that O'Callahan
completely reinterpreted the limits of Congress' power to confer jurisdiction on
courts martial, the decision involved the authoritative construction of a
constitutional provision and no military tribunal could ever constitutionally
have had more power than resided therein. But the real point is that O'Callahan
did not mark a sharp, new departure from prior law.
101 The plurality acknowledges that O'Callahan did not involve the overruling of
any prior precedent, ante, at 673. It is true, as the plurality indicates, that a
number of prior decisions had suggested that 'military status in itself was
sufficient for the exercise of court-martial jurisdiction,' ibid. Yet none of the
cases upon which the plurality relies dealt in fact with a nonservice-connected
offense committed by a serviceman in peacetime. 9 It is fair to say, in short, that
until O'Callahan the Court had not directly faced the issue of the serviceconnected nature of servicemen's offenses.
102 More importantly, perhaps, the O'Callahan Court's efforts to define the
constitutional limits of the jurisdiction of courts-martial was hardly the
beginning of such efforts by the Court. O'Callahan was but one of a series of
steps taken by this Court since the conclusion of the Second World War to
restrict military jurisdiction to its constitutionally appropriate limits. Thus, in
Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955), the Court ruled
that a discharged serviceman could not be tried by a court-martial for offenses
committed while a member of the Armed Forces. Subsequently, it was
established that courts-martial did not have jurisdiction to try offenses
committed by civilian dependents accompanying military personnel serving
overseas. Kinsella v. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268
(1960); Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957).
Finally, the Court held that civilians employed with the military overseas were
not subject to court-martial jurisdiction. See Grisham v. Hagan, 361 U.S. 278,
80 S.Ct. 310, 4 L.Ed.2d 279 (1960); McElroy v. Guagliardo, 361 U.S. 281, 80
S.Ct. 305, 4 L.Ed.2d 282 (1960). This series of cases limited the reach of

courts-martial to members of the Armed Forces; they did not require the Court
to go on to define the breadth of offenses for which servicemen could be tried
by courts-martial. Nonetheless, these cases and O'Callahan clearly were all
pieces of the same cloth. Under these circumstances, I seriously doubt that
retroactive application would do substantial violence to any legitimate, official
reliance upon prior law10 even assuming that to be a valid consideration here.11
II
103 Mr. Justice DOUGLAS, in his concurring opinion, contends that petitioner
Gosa's case merits reargument to consider whether he should be denied relief
because he failed to raise his jurisdictional objection before the court-martial
that tried him. Mr. Justice DOUGLAS intimates that since the jurisdiction of
the military to try petitioner was not initially contested, 'res judicata (may now
bar) inquiry' into the question of jurisdiction, ante, at 689. In my opinion, such
an argument is clearly untenable, and hence reargument of petitioner Gosa's
case is unnecessary.
A.
104 One of the most basic principles of our jurisprudence is that subject-matter
jurisdiction cannot be conferred upon a court by consent of the parties. See,
e.g., American Fire & Casualty Co. v. Finn, 341 U.S. 6, 1718, 71 S.Ct. 534,
541542, 95 L.Ed. 902 (1951); Industrial Addition Ass'n v. Commissioner,
323 U.S. 310, 313, 65 S.Ct. 289, 292, 89 L.Ed. 260 (1945); People's Bank v.
Calhoun, 102 U.S. 256, 260261, 26 L.Ed. 101 (1880); Cutler v. Rae, 7 How.
729, 731, 12 L.Ed. 890 (1849).12 An objection to the adjudicatory power of a
tribunal may generally be raised for the first time at any stage of the
litigation.13 See, e.g., Flast v. Cohen, 392 U.S. 83, 88 n. 2, 88 S.Ct. 1942, 1946,
20 L.Ed.2d 947 (1968); United States v. Griffin, 303 U.S. 226, 229, 58 S.Ct.
601, 602, 82 L.Ed. 764 (1938); Fortier v. New Orleans National Bank, 112 U.S.
439, 444, 5 S.Ct. 234, 236, 28 L.Ed. 764 (1884). Those principles are
applicable even in the context of collateral attacks upon court-martial
proceedings, as is evident from this Court's decision in McClaughry v. Deming,
186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049 (1902).
105 McClaughry, as previously indicated, involved a collateral attack upon the
court-martial conviction of a volunteer officer who claimed that the Regular
Army court-martial which had tried him had been constituted in violation of the
relevant law and therefore was without jurisdiction. The volunteer officer had
failed to raise this jurisdictional objection before the court-martial, and the
military contended before this Court that 'his consent waived the question of

invalidity,' id., at 66, 22 S.Ct., at 793. The Court rejected his contention,
saying:
106 'It was not a mere consent to waive some statutory provision in his favor which,
if waived, permitted the court to proceed. His consent could no more give
jurisdiction to the court, either over the subject-matter or over his person, than
if it had been composed of a like number of civilians . . .. The fundamental
difficulty lies in the fact that the court was constituted in direct violation of the
statute, and no consent could confer jurisdiction over the person of the
defendant or over the subject-matter of the accusation, because to take such
jurisdiction would constitute a plain violation of law.' Ibid.
107 See also id., at 68, 22 S.Ct., at 763; Givens v. Zerbst, 255 U.S. 11, 20, 41 S.Ct.
227, 229, 65 L.Ed. 475 (1921); Ver Mehren v. Sirmyer, 36 F.2d 876, 879880
(CA8 1929). Just as the silence of the accused in McClaughry could not confer
jurisdiction on a court-martial of the Regular Army that was acting in excess of
its statutory authority, so here the failure of Gosa to raise his jurisdictional
objection before the court-martial could not have conferred upon that tribunal
authority that constitutionally could not be conferred. Consequently, his failure
to object to the jurisdiction of the court-martial that tried him cannot be deemed
fatal in this Court.14
B
108 Moreover, even if O'Callahan were to be treated as merely a procedural rather
than as a true jurisdictional decision, application of the doctrine of res judicata
would nonetheless be entirely inappropriate in the context of petitioner Gosa's
case since that action was brought by way of a petition for federal habeas
corpus. Specifically, I must vigorously disagree with the suggestion, necessarily
inherent in Mr. Justice DOUGLAS' opinion, that the doctrine of res judicata
may have some place in the law of federal habeas corpus. In the past, this Court
has indicated quite explicitly to the contrary:
109 'At common law the doctrine of res judicata did not extend to a decision on
habeas corpus refusing to discharge the prisoner. The state courts generally
have accepted that rule where not modified by statute . . .; and this Court has
conformed to it and thereby sanctioned it . . . We regard the rule as well
established in this jurisdiction.' Salinger v. Loisel, 265 U.S. 224, 230, 44 S.Ct.
519, 520, 68 L.Ed. 989 (1924).
110 See Fay v. Noia, 372 U.S. 391, 423, 83 S.Ct. 822, 840, 9 L.Ed.2d 837 (1963);

Darr v. Burford, 339 U.S. 200, 214, 70 S.Ct. 587, 595, 94 L.Ed. 761 (1950).
Indeed, the rule was still 'well established in this jurisdiction' just a few months
ago.15
111 See Neil v. Biggers, 409 U.S. 188, 190191, 93 S.Ct. 375, 377 378, 34
L.Ed.2d 401 (1972). The federal courts, to be sure, are not without means for
dealing with repetitious applications for habeas corpus, see, e.g., Salinger v.
Loisel, supra, 265 U.S. at 231232, 44 S.Ct., at 521522; 28 U.S.C.
2244(a), (b), or with applications raising questions previously litigated in this
Court, see 28 U.S.C. 2244(c). But no such problems are presented here.
Rather, a procedural problem arises in this case because petitioner Gosa failed
to assert the 'jurisdictional' defect, which he now raises, in seeking leave for a
direct appeal to the Court of Military Appeals. This reflects, in my view, a
failure on the part of Gosa to satisfy the exhaustion requirement, which is
applied in the context of collateral attack on federal habeas corpus, thereby
raising a substantial question whether he has waived his right to challenge the
'jurisdiction' of the court-martial on habeas corpus.
112 The exhaustion doctrine evolved in the context of collateral attack on state
criminal proceedings. See, e.g., Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88
L.Ed. 572 (1944); Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868
(1886). It generally requires state petitioners to utilize available state court
remedies before resorting to federal habeas corpus,16 and thus serves both to
ensure the orderly functioning of state judicial processes, without disruptive
federal court intervention, and to allow state courts to fulfill their roles as coequal partners with the federal courts in the enforcement of federal law, thus
often eliminating the need for federal court action, and avoiding unnecessary
friction between state and federal courts. These same considerations inhere in
the context of collateral attack in federal court upon the judgments of military
tribunals, which constitute a judicial systema system with its own peculiar
purposes and legal traditionsdistinct from the federal judicial system much
like the independent state judicial systems. Accordingly, this Court normally
has required that military petitioners exhaust all available remedies within the
military justice system. See Noyd v. Bond, 395 U.S. 683, 693, 89 S.Ct. 1876,
1882, 23 L.Ed.2d 631 (1969); Gusik v. Schilder, 340 U.S. 128, 131132, 71
S.Ct. 149, 151152, 95 L.Ed. 146 (1950).17 At the time petitioner Gosa
initiated this collateral attack he indeed had not exhausted a military remedy
which was formerly available to him with respect to the claim he now asserts.
But that certainly ought not to be the end of the inquiry.
113 In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the Court
rejected the position that a state prisoner who had not pursued his state

appellate remedies was barred from seeking federal habeas corpus because of
his failure to exhaust, where the state appellate remedies were no longer
available. The Court concluded, instead, that the exhaustion 'requirement refers
only to a failure to exhaust state remedies still open to the applicant at the time
he files his application for habeas corpus in the federal court.' Id., at 399, 83
S.Ct. at 827. The Court established that where there has been a failure to resort
to a state court remedy and that remedy is no longer available, the availability
of federal habeas corpus would turn on whether there was a deliberate bypass
of the state process. Id., at 438, 83 S.Ct., at 848. In determining whether such a
bypass has occurred, the Court said that '(t)he classic definition of waiver
enunciated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82
L.Ed. 1461'an intentional relinquishment or abandonment of a known right or
privilege'furnishes the controlling standard.' 372 U.S., at 439, 83 S.Ct., at
849.
114 This Court has never considered the applicability of the nondeliberate-bypass
rule in the context of military petitioners. Fay does not speak specifically with
respect to such petitioners. Nonetheless, the consideration which argue in favor
of tempering the exhaustion requirement with a rule of nondeliberate bypass in
the context of state petitioners are equally applicable in the context of military
petitioners. Certainly, military petitioners should be encouraged to raise their
constitutional claims before available military tribunals in order to ensure the
orderly functioning of the system of military justice, to avoid needless federal
court action, and to allow military tribunals an initial opportunity to correct
their own errors. These interests are not subverted, however, by allowing a
military petitioner to seek federal habeas corpus on the basis of a claim which
he failed to raise before the military courts because he either was unaware of or
did not otherwise willingly fail to raise that claim. As with state petitioners, the
integrity of the exhaustion requirement is adequately protected by a rule
prohibiting a deliberate bypass of an available military tribunal. A more
stringent rule would serve only to bar presentation of valid federal claims
without any countervailing justification for doing so.
115 On the facts of this case, I find it impossible to conclude that petitioner Gosa
has waived his right to challenge the 'jurisdiction' of the court-martial which
convicted him of rape on the ground that the offense was not service connected.
A valid waiver requires the 'intentional relinquishment . . . of a known right.'18
At the time of petitioner's 1967 application for review by the Court of Military
Appeals the substantial 'jurisdictional' issue that he now raises had yet to be
addressed by this Court. While O'Callahan is, to be sure, properly viewed as
one further step in the ongoing process of establishing the limits of courtmartial jurisdiction, see supra, at 705708, I do not think it follows that we

should impose a rule of waiver so strict that it requires an individual petitioner

to anticipate, at the time he appeals, a particular constitutional ruling of this
Court that has yet to be rendered, especially not when the protection of a
number of guarantees of the Bill of Rights is at stake. Moreover, where a new
constitutional rule has been established following completion of regular
proceedings in the military courts, the interests served by the exhaustion
requirement can be fully satisfied by requiring that the subsequently identified
claim first be presented to the military courts if a means, such as postconviction relief,19 exists for doing so. Cf. Blair v. California, 340 F.2d 741
(C.A.9 1965); Pennsylvania ex rel. Raymond v. Rundle, 339 F.2d 598 (C.A.3
1964). Yet if it is clear that those courts would reject the claim, such postconviction resort to the military courts would, of course, be futile and is
therefore unnecessary, see Gusik v. Schilder, 340 U.S., at 132 133, 71 S.Ct., at
151152. This is now the case here, for during the pendency of this action the
Court of Military Appeals, in Mercer v. Dillon, 19 U.S.C.M.A. 264, 41 C.M.R.
264 (1970), held that the 'jurisdictional' principle announced in O'Callahan did
not apply to cases decided before the date of the O'Callahan decision. It
therefore became clear that it would be pointless to dismiss petitioner Gosa's
application in order to allow him to present his claim to the military courts,20
and consequently, his challenge to the 'jurisdiction' of the court-martial that
tried him is now properly before this Court.
116 Since I then cannot agree with the opinion of either the plurality or Mr. Justice
DOUGLAS, I dissent.

The Court, of course, has not yet held the indictment requirement of the Fifth
Amendment to be binding upon the States. Hurtado v. California, 110 U.S. 516,
4 S.Ct. 111, 28 L.Ed. 232 (1884); Gaines v. Washington, 277 U.S. 81, 86, 48
S.Ct. 468, 470, 72 L.Ed. 793 (1928); Branzburg v. Hayes, 408 U.S. 665, 688, n.
25, 92 S.Ct. 2646, 2678, 33 L.Ed.2d 626 (1972).

Tr. of Oral Arg. 16.

Gosa has since been released. Inasmuch as the District Court possessed federal
habeas jurisdiction when Gosa's application was filed, that jurisdiction was not
defeated by his release prior to the completion of proceedings on the
application. Carafas v. LaVallee, 391 U.S. 234, 238240, 88 S.Ct. 1556, 1559
1560, 20 L.Ed.2d 554 (1968).

It appears that the automobile was owned by a member of the Signal Corps but
that the car was being used by him on a purely personal errand when it was

stolen. The owner was not compensated by the military for its use.
5

See also Schlomann v. Moseley, 457 F.2d 1223 (CA10 1972), cert. denied, 413
U.S. 919, 93 S.Ct. 3068, 37 L.Ed.2d 1041; Thompson v. Parker, 308 F.Supp.
904, 907908 (MD Pa.), appeal dismissed (CA3, No. 18868, 1970); and
Mercer v. Dillon, 19 U.S.C.M.A. 264, 265, 41 C.M.R. 264, 265 (1970), where
the Court of Military Appeals confined the application of O'Callahan to those
convictions that were not final when O'Callahan was decided on June 2, 1969.
Scholarly comment on O'Callahan retrospectivity is divided. The following
predict or favor nonretroactivity: Everett, O'Callahan v. ParkerMilestone or
Millstone in Military Justice?, 1969 Duke L.J. 853, 886889; Nelson &
Westbrook, Court-Martial Jurisdiction Over Servicemen for 'Civilian' Offenses:
An Analysis of O'Callahan v. Parker, 54 Minn.L.Rev. 1, 3946 (1969); Note,
Military LawConstitutional LawCourt-Martial Jurisdiction Limited to
'Service-Connected' cases, 44 Tulane L.Rev. 417, 423424 (1970); Note,
RetroactivityMilitary JurisdictionMilitary Convictions for Nonservice
Connected Offences Should Be Vacated Retroactively, 50 Tex.L.Rev. 405
(1972); Note, Constitutional Law Retroactivity of O'Callahan v. Parker, 47 St.
John's L.Rev. 235 (1972); Note, The Sword and Nice Subtleties of
Constitutional Law: O'Callahan v. Parker, 3 Loyola U. (L.A.) L.Rev. 188, 198
n. 67 (1970); Comment, Courts MartialJurisdictionService-Connected
Crime, 21 S.C.L.Rev. 781, 793794 (1969). The following predict or favor
retroactivity: Blumenfeld, Retroactivity After O'Callahan: An Analytical and
Statistical Approach, 60 Geo.L.J. 551 (1972); Wilkinson, The Narrowing Scope
of Court-Martial Jurisdiction: O'Callahan v. Parker, 9 Washburn L.J. 193, 197
201 (1970); Higley, O'Callahan Retroactivity: An Argument for the
Proposition, 27 JAG J. 85, 9697 (1972); Note, O'Callahan v. Parker, A
Military Jurisdictional Dilemma, 22 Baylor L.Rev. 64, 75 (1970); Note, Denial
of Military Jurisdiction over Servicemen's Crimes Having No Military
Significance and Cognizable in Civilian Courts, 64 Nw.U.L.Rev. 930, 938
(1970). See Birmbaum & Fowler, O'Callahan v. Parker: The Relford Decision
and Further Developments in Military Justice, 39 Ford L.Rev. 729, 739742
(1971).
A compilation of general comments on O'Callahan appears in Relford v.
Commandant, 401 U.S. 355, 356 n. 1 (1971).

There are some protections in the military system not afforded the accused in
the civilian counterpart. For example, Art. 32 of the Code, 10 U.S.C. 832,
requires 'thorough and impartial investigation' prior to trial, and prescribes for
the accused the rights to be advised of the charge, to have counsel present at the

investigation, to cross-examine adverse witnesses there, and to present

exonerating evidence. It is not difficult to imagine, also, the situation where a
defendant, who is in service, may well receive a more objective hearing in a
court-martial than from a local jury of a community that resents the military
presence.
The Uniform Code of Military Justice was not in effect when Flemings was
charged and pleaded guilty. But the fact that this proceeding took place under
the present Code's predecessor is no inevitable indication of basic unfairness.
See Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953).
7

'We recognize that not all the persons possibly entitled to review and relief
would have the initiative or a sufficient financial interest to justify the time and
expense of bringing suits or applications. A reliable estimate of the number of
court-martial convictions that could be overturned by a retroactive application
of O'Callahan is nearly impossible to secure. For the one fiscal year of 1968,
the Army, the Navy, and the Air Force conducted approximately 74,000 special
and general courts-martial. If only the smallest fraction of these courts-martial
and those conducted in the other years since 1916 involved an O'Callahan
issue, it is an understatement that thousands of courts-martial would still be
subject to review. The range of relief could be extensive, involving such actions
as determinations by the military departments of whether the character of
discharges must be changed, and consideration of retroactive entitlement to pay,
retired pay, pensions, compensation, and other veterans' benefits. Among the
difficulties would be the necessity of reconstructing the pay grade that a
member of the armed forces would have attained except for the sentence of the
invalidated court-martial, a task complicated by the existence of a personnel
system involving selection of only the best qualified eligibles and providing for
the elimination of others after specified years of service.' 19 U.S.C.M.A., at 267
268, 41 C.M.R., at 267268.

In Flemings' case, the Secretary argues, in the alternative, that O'Callahan does
not require the invalidation of the auto theft conviction because the offense was
committed while the respondent was absent without leave during wartime. For
that reason, it is said, the offense was service connected under the rationale of
Relford. In view of our holding on the issue of retroactivity, we do not reach,
and need not resolve, this alternative argument.

In the Flemings case respondent in time of war went AWOL and stole a car
from a civilian. The military charge against him was an unauthorized absence
from his duty station during wartime and theft of a car from a civilian. He
pleaded guilty; and the only action brought came years later when he sought
correction of his military records.

The Uniform Code of Military Justice, after providing for investigation before a
charges is referred to a general court-martial in Art. 32(a), goes on to state in
Art. 32(b):
'The accused shall be advised of the charges against him and of his right to be
represented at that investigation by counsel. Upon his own request he shall be
represented by civilian counsel if provided by him, or military counsel of his
own selection if such counsel is reasonably available, or by counsel detailed by
the officer exercising general court-martial jurisdiction over the command. At
that investigation full opportunity shall be given to the accused to crossexamine witnesses against him if they are available and to present anything he
may desire in his own behalf, either in defense or mitigation, and the
investigating officer shall examine available witnesses requested by the
accused. If the charges are forwarded after the investigation, they shall be
accompanied by a statement of the substance of the testimony taken on both
sides and a copy thereof shall be given to the accused.' 10 U.S.C. 832(b).
Petitioner had counsel before the Court of Military Appeals, one designated by
the Army; and only ' the merits' of the conviction were raised, no question
being raised relating to the 'jurisdiction' of the military.

Title 10 U.S.C. 876 provides that military review of court-martial convictions

shall be 'final and conclusive' and 'binding upon all . . . courts . . . of the United
States.' As we noted in United States v. Augenblick, 393 U.S. 348, 349350,
89 S.Ct. 528, 529530, 21 L.Ed.2d 537, relief by way of habeas corpus is an
exception to that finality clause.
It was suggested by the Solicitor General in his brief in opposition to a motion
for leave to file a petition for writ of certiorari in Crawford v. United States,
380 U.S. 970, 85 S.Ct. 1349, 14 L.Ed.2d 281, that while the statutes made the
judgment of the Court of Military Appeals 'final and conclusive,' habeas corpus
would be available to a person confined and a writ of error coram nobis in the
District Court if he is not confined; citing 25 U.S.C. 1254(c) (probably
intending 28 U.S.C. 1254(1)); Hiatt v. Brown, 339 U.S. 103, 106 n. 1, 70
S.Ct. 495, 496, 94 L.Ed. 691. In that view one who was unsuccessful in
obtaining relief by way of coram nobis in the district court, would be able to
seek review in the court of appeals and ultimately by certiorari in this Court.
That question was not resolved by this Court, since we denied certiorari in the
Crawford case. In the Crawford case the question tendered on the merits was
whether the restriction of court-martial membership to senior noncommissioned
officers, excluding entire classes of statutorily eligible prospective court-martial
members, deprived petitioner of due process and violated 10 U.S.C. 825 so as
to deprive the court-martial of jurisdiction. For the decision of the Court of

Military Appeals see United States v. Crawford, 15 U.S.C.M.A. 31, 35 C.M.R.

3. And see Schiesser, Trial by Peers: Enlisted Members on Courts-Martial, 15
Cath.U.L.Rev. 171 (1966).
4

The Court of Military Appeals decided that O'Callahan v. Parker would be

applied only to those convictions that were not final before the date of that
decision. Mercer v. Dillon, 19 U.S.C.M.A. 264, 41 C.M.R. 264 (1970).

For purposes of habeas corpus, historically used to test the 'jurisdiction' of

tribunals to try defendants, the concept has been broadened to include
constitutional guarantees. Thus in Johnson v. Zerbst 304 U.S. 458, 58 S.Ct.
1019, 82 L.Ed. 1461, compliance with the constitutional mandate that an
accused is entitled to counsel was held to be 'an essential jurisdictional
prerequisite to a federal court's authority to deprive an accused of his life or
liberty.' Id., at 467, 58 S.Ct., at 1024. The rule announced used 'jurisdiction' in
an innovative way with the purpose of giving counsel to defendants who up to
the time of our decisions in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792,
9 L.Ed.2d 799, and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32
L.Ed.2d 530, had no lawyers to represent them and thus were commonly
deprived of their constitutional rights.

See n. 2, supra.

Mr. Justice STEWART joins this opinion only as it applies to No. 716314.
See ante, this page.

See generally Restatement of Judgments 7, comments at 41 46 (1942).

See 395 U.S., at 265, 267, 269, 272, 89 S.Ct., at 1686, 1687, 1689, 1690.

In Relford v. Commandant, 401 U.S. 355, 356, 91 S.Ct. 649, 651, 28 L.Ed.2d
102 (1971), Mr. Justice Blackmun, speaking for the Court, described the
O'Callahan decision as follows:
'In O'Callahan . . ., by a five-to-three vote, the Court held that a court-martial
may not try a member of our armed forces charged with attempted rape of a
civilian, with housebreaking, and with assault with intent to rape, when the
alleged offenses were committed off-post on American territory, when the
soldier was on leave, and when the charges could have been prosecuted in a
civilian court.'

A serviceman convicted by a court-martial does, of course, ultimately have

access to the federal judicial system by way of a petition for federal habeas
corpus. See, e.g., Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508

(1953); Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950).
5

Indeed, even if the military voluntarily elected to provide servicemen on trial

before courts-martial with the full panoply of procedural rights constitutionally
required in civil forums, that would not affect the decision in O'Callahan.
Implicit in O'Callahan is the fact that the military system of justice has never
been understood to be constitutionally compelled to provide many of the
procedural rights afforded by the civilian courts, and thus it would always
remain free to provide only that which is constitutionally necessary. It was with
an understanding of what is constitutionally required, not of what the military
might elect to provide, that the scope of Congress' power under Art. I, 8, cl.
14, had to be, and was, defined in O'Callahan, see 395 U.S., at 261262, 89
S.Ct., at 16841685. It is this fact that perhaps best demonstrates the true
jurisdictionalas opposed to procedural nature of that decision.

See also Developments in the LawFederal Habeas Corpus, 83 Harv.L.Rev.

1038, 1209 (1970). The Court moved beyond the jurisdictional limitation on
collateral attacks upon court-martial convictions in Burns v. Wilson, 346 U.S.
137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953). See Developments in the Law
Federal Habeas Corpus, supra, at 12151216.

Cf. Restatement of Judgments 7 comment b, pp. 4243 (1942):

'There are many situations in which a court lacks competency to render a
judgment. Thus, although a State has jurisdiction to grant a divorce of parties
domiciled within the State, a decree of divorce rendered by a court which is not
empowered to entertain suits for divorce is void. Similarly, a judgment
rendered by a justice of the peace is void if under the law of the State such
justices are not empowered to deal with the subject matter of the action; as, for
example, where the action is one for tort and justices of the peace are given no
power except in actions of contract. So also, where a court is given power to
deal with actions involving no more than a designated amount, the statute
limiting the amount is ordinarily construed not merely to make erroneous a
judgment rendered by such a court in excess of its power, but to make such
judgment void.'

In Robinson itself, the Court concluded that, in all events, there was no
substantial element of reliance since 'Waller cannot be said to have marked a
departure from past decisions of this Court.' 409 U.S., at 510, 93 S.Ct., at 879.

Kinsella v. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960), Reid
v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), and Ex parte
Milligan, 4 Wall. 2, 18 L.Ed. 281 (1866), dealt with the exercise of military
jurisdiction to try civilians, not servicemen. In each case, the court held that the

military lacked jurisdiction to try the civilians.

In Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084 (1907),
the Court held that a soldier who had been acquitted by a properly convened
court-martial of a charge of homicide growing out of the shooting of a civilian
while he was on guard duty in the Phillipine Islands could not thereafter be tried
and convicted for the same offense by a civilian court of that Territory. Johnson
v. Sayre, 158 U.S. 109, 15 S.Ct. 773, 39 L.Ed. 914 (1895), involved the courtmartial conviction of a navy paymaster, whom the Court found to be in the
naval service of the United States, for embezzling naval funds while serving on
a receiving ship of the United States Navy. And in Smith v. Whitney, 116 U.S.
167, 6 S.Ct. 570, 29 L.Ed. 601 (1886), the Court was asked to order that a writ
of prohibition be issued against a court-martial convened to try a naval pay
inspector essentially for making various contracts not in the best interest of the
Navy, for failing properly to enforce contractual agreements with the Navy, for
compelling payment of illegal contractual claims against the Navy, and for
failing to perform his duties and responsibilities. There can be little question
that each of the offenses in Grafton, Johnson, and Smith, and 'service
connected' within the meaning of O'Callahan. Contrast Relford v.
Commandant, 401 U.S., at 365, 91 S.Ct., at 655.
Finally, Coleman v. Tennessee, 97 U.S. 509, 24 L.Ed. 1118 (1879), involved
the court-martial conviction of a soldier for the murder of a civilian woman.
The particular circumstances of the murder are not apparent from the Court's
opinion, but it is clear that the crime occurred during the Civil War, that is,
during wartime, rather than during peacetime, see id., at 516517, 24 L.Ed.
1118. O'Callahan did not clearly speak with respect to constitutional limits of
court-martial jurisdiction during wartime since the offense at issue there had
occurred in peacetime, and the plurality does not reach the issue of wartime
offenses today, although it arguably is presented in No. 711398, see ante, at
685 n. 8.
10

With regard to the question of official reliance, it has been pointed out that as
long ago as 1955 the Departments of Justice and Defense reached an agreement
that at least federal offenses committed by servicemen off-post would fall
within the jurisdiction of the Justice Department while those committed on-post
would be within the jurisdiction of the Defense Department:
'The Departments of Justice and Defense have found it desirable to establish
ground rules for determining the forum for trying a serviceman charged with a
civil offense in violation of both military and federal law. In general, these
rules, which were established by agreement between the Departments in 1955,
give to the military department concerned the responsibility of investigating

and prosecuting offenses committed by persons subject to the Uniform Code of

Military Justice and involving as victims only those persons or their civilian
dependents residing on the military installation in question.' Duke & Vogel,
The Constitution and the Standing Army: Another Problem of Court-Martial
Jurisdiction, 13 Vand.L.Rev. 435, 455 (1960), citing Army Reg. 22160, Oct.
7, 1955, implementing Memorandum of Understanding Between the
Departments of Justice and Defense Relating to the Prosecution of Crimes Over
Which the Two Departments have Concurrent Jurisdiction (July 19, 1955).
11

Since the plurality opinion does not find it necessary to reach the Secretary's
additional argument in No. 711398 that the auto theft there at issue was
service connected because the offense took place while respondent was absent
without leave during wartime, I think it inappropriate for me to express any
view on that additional argument at this time.

12

See also Restatement of Judgments 7, comment d, p. 45 (1942).

13

Contrast n. 15, infra.

14

Mr. Justice DOUGLAS would seem inclined to limit unwaivable jurisdictional

flaws to instances in which an accused is 'tried by a kangaroo court or by eager
vigilantes . . ..' ante, at 689690. But the presence or absence of adjudicatory
power does not turn only on the fairness of the proceeding afforded by a
particular forum; rather, as McClaughry adequately illustrates, jurisdictional
competency in the context of courts of limited jurisdiction such as courtsmartial necessarily involves the limits of the statutory and constitutional
authority that provides the legal underpinnings for such tribunals. See also
Hiatt v. Brown, 339 U.S. 103, 111, 70 S.Ct. 495, 498, 49 L.Ed. 691 (1950); and
n. 7, supra.

15

For this reason, I believe that Mr. Justice DOUGLAS' reliance on Chicot
County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84
L.Ed. 329 (1940), is clearly misplaced insofar as petitioner Gosa's case is
concerned. Chicot County involved a question concerning the extent of
indebtedness on certain municipal bonds which had previously been the subject
of a federal proceeding to readjust indebtedness under the bankruptcy laws.
Following the readjustment proceeding, this Court declared unconstitutional the
statute under which the proceeding had been brought, see Ashton v. Cameron
County Water Improvement District, 298 U.S. 513, 56 S.Ct. 892, 80 L.Ed. 1309
(1936). In Chicot County, this Court then held that the original decree was not
open to collateral attack as void by the nonconsenting bondholders who had had
notice of the original readjustment proceeding but had there lodged no
objection to the court's jurisdiction.

The decision can be seen as resting simply on the doctrine of res judicata to
which the Court referred at points in its opinion, see Chicot County, supra, 308
U.S., at 374375, 60 S.Ct., at 318 319. The plaintiffs in the second action had
had a full and fair opportunity to litigate the issue of jurisdiction in the first
proceeding but had failed to do so. At the same time, there had been substantial
action taken in reliance on the readjustment plan approved in the first
proceeding. New bonds had been sold to the Reconstruction Finance
Corporation which had then purchased old bonds in exchange for them. Under
these circumstances it was both fair and proper to bar litigation of the
jurisdiction issue in the collateral proceeding. Cf. Restatement of Judgments
10 and comment (1942).
But, as has been pointed out, the doctrine of res judicata has no place in federal
habeas corpus; rigid rules restricting what questions are open to litigation on
collateral attack are inappropriate in the context of judgments affecting personal
liberty. There are, of course, legitimate concerns with finality in criminal
proceedingsboth civilian and militaryand with the orderly functioning of
independent judicial systems. But we have rules concerning exhaustion, waiver,
and nonrepetitious application to protect those concerns in the context of federal
habeas corpus.
More generally, Chicot County is probably most appropriately interpreted as an
early decision concerning the nonretroactive application of a particular
decision, namely, Ashton. Despite the Court's resort at places to the rubric of
res judicata, the presence of substantial reliance on pre-existing law clearly was
an important consideration in the Court's decision not to allow the intervening
decision in Ashton to be used to collaterally attack the original plan of
readjustment. Furthermore, Chicot County was heavily relied upon by this
Court when it gave the principles governing the retroactivity of new procedural
constitutional rules full expression in Linkletter v. Walker, 381 U.S. 618, 625
626, 85 S.Ct. 1731, 17351736, 14 L.Ed.2d 601 (1965); and the case has been
cited as a retroactivity decision on a number of occasions since Linkletter, see
Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296
(1971); United States v. U.S. Coin & Currency, 401 U.S. 715, 742743, 91
S.Ct. 1041, 10551056, 28 L.Ed.2d 434 (1971) (White, J., dissenting); cf.
United States v. Estate of Donnelly, 397 U.S. 286, 293294, 90 S.Ct. 1033,
10371038, 25 L.Ed.2d 312 (1970); id., at 299300, 90 S.Ct., at 10401041
(Douglas, J., dissenting). Viewed then as a precursor of the presentday
retroactivity doctrine, Chicot County has no relevance for the threshold
question whether Gosa is barred from raising his jurisdictional challenge on
habeas corpus because he failed to present it in applying for leave to appeal to
the Court of Military Appeals.

16

This rule does not, however, entitle the state courts to more than one
opportunity to consider the same claim. Thus, in Brown v. Allen, 344 U.S. 443,
447, 73 S.Ct. 397, 402, 97 L.Ed. 469 (1953), where the petitioners had
presented their federal claims to the state courts on direct review, the Court
said, 'It is not necessary in such circumstances for the prisoner to ask the state
for collateral relief, based on the same evidence and issues already decided by
direct review . . ..' Indeed, if the exhaustion requirement were not restricted to
providing all levels of the state courts with an opportunity to hear his federal
claim, it would effectively bar state prisoners from ever reaching a federal
forum in States in which an unlimited number of identical applications for state
post-conviction relief are permitted. The exhaustion requirement does not
demand such 'repetitious applications to state courts.' Id., at 448449, n. 3, 73
S.Ct., at 402403.

17

But see McElroy v. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282
(1960); Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957); Toth
v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955); Noyd v. Bond, 395
U.S. 683, 696 n. 8, 89 S.Ct. 1876, 1884, 23 L.Ed.2d 631 (1969).

18

Nothing in this Court's recent decisions in Tollett v. Henderson, 411 U.S. 258,
93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), and Davis v. United States, 411 U.S.
233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), suggests that a different standard
should be applied in the context of this case. Tollett involved a collateral attack
upon the validity of a guilty plea in light of racial discrimination in the
composition of the state grand jury that had indicted Henderson, an objection
that had not been raised at the time of the entrance of the plea. Because it was
clear that neither Henderson nor his counsel were aware of the claim of
discrimination at the time of the plea, the Court agreed that there had been no
valid waiver of the claim in traditional terms, see 411 U.S., at 266, 93 S.Ct., at
1607, but the Court did not consider that determination dispositive in the
peculiar context of a collateral attack upon a guilty plea. Rather, the Court ruled
that '(t)he focus of federal habeas inquiry is the nature of the advice and the
voluntariness of the plea, not the existence as such of an antecedent
constitutional infirmity, id., at 266, 93 S.Ct., at 1608. We, of course, do not deal
here with the special problem of a collateral attack upon a guilty plea.
In Davis, the Court held that, for purposes of collateral attack, a petitioner had
waived his objection to the composition of the grand jury that tried him because
he had failed to raise the objection before trial as Fed.Rule Crim.Proc. 12(b)(2)
expressly requires. Rule 12(b)(2) specifies that '(d)efenses and objections based
on defects in the institution of the prosecution or in the indictment . . . may be
raised only by motion before trial' and that failure to do so 'constitutes a waiver
thereof.' Confronted with a situation in which a specific rule provided 'for the

waiver of a particular kind of constitutional claim if it be not timely asserted,'

411 U.S., at 239240, 93 S.Ct., at 1581, the Court concluded that preservation
of the integrity of the Rule demanded that its standard should govern in the
context of a collateral attack upon an indictment. This case, however, involves
no such 'express waiver provisions,' id., at 240, 93 S.Ct., at 1582, and
consequently the general waiver principles established by this Court's previous
decisions must control.
19

See Developments in the LawFederal Habeas Corpus, 83 Harv.L.Rev. 1038,

1234 (1970); cf. Noyd v. Bond, 395 U.S., at 695 n. 7, 89 S.Ct., at 1883 n. 7.

20

In any case, while his application for habeas corpus was pending in the District
Court, petitioner Gosa filed a motion to vacate his conviction and sentence, on
the basis of O'Callahan, in the Court of Military Appeals. Subsequent to the
denial of relief in the District Court, the Court of Military Appeals, treating
petitioner's motion as a petition for reconsideration, also denied relief. It did so,
not on the basis that Gosa had waived the 'jurisdictional' question by failing to
present it on direct appeal, but on the basis of its previous decision in Mercer
holding O'Callahan to be nonretroactive. 19 U.S.C.M.A. 327, 41 C.M.R. 327
(1970). Thus, in all events, it seems clear that Gosa has now adequately
exhausted his military remedies and his previous bypass can no longer be
deemed a waiver of the 'jurisdictional question, see Warden v. Hayden, 387
U.S. 294, 297 n. 3, 87 S.Ct. 1642, 1645, 18 L.Ed.2d 782 (1967).