Ernest J. Lichtenstein v. James R. Schlesinger, Secretary of Defense, and Howard H. Callaway, Secretary of the Army

This was an action by a former serviceman under 10 U.S.C. § 1552 and 28 U.S.C. § 1361 to change his discharge from “undesirable” to “general.” The appeal involves the issue whether O’Callahan v. Parker, 395 U.S. 258 , 89 S.Ct. 1683 , 23 L.Ed.2d 291 (1969), holding that courts martial jurisdiction extends only to service-connected offenses, is to be applied retroactively. The memorandum decision and judgment of the district court and the briefs herein preceded the Supreme Court’s opinion in Gosa v. Mayden, 413 U.S. 665 , 93 S.Ct. 2926 , 37 L.Ed.2d 873 (1973), which discussed this issue but left it unresolved. Following the reasoning of the plurality opinion in Gosa , we affirm.

In 1956, while an enlisted man in the Army, appellant was stationed at Fort Sill, Oklahoma and lived off the post in the city of Lawton. He was arrested by local police for disturbing the peace and assaulting his wife, but he was shortly thereafter released to military authorities at the Army post. After trial before a Special Court • Martial under UCMJ Article 116, he was found guilty, and was sentenced to confinement for six months with certain pay forfeitures. Later that year, a Board of Review…