Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges.
This is an appeal from an order entered by the district court on a petition for a writ of habeas corpus, discharging the relator, William H. Giese, from custody of the United States Army.
Relator enlisted in the United States Army about February 2, 1926, and was discharged February 1, 1929. He re-enlisted about March 12, 1930, for a period of three years, but deserted on July 2, 1930. Years later he was apprehended and was returned to military control in August, 1942, and pursuant to the Extension of Service Period Act of December 13, 1941, 55 Stat. 800, 50 U.S.C.A.Appendix, §§ 731-733, he was restored to duty on October 13, 1942, at Fort Sheridan for the duration of the war plus six months. On or about March 15, 1943, relator again deserted. About one year later, on March 16, 1944, he was inducted into the service of the United States Army. On June 29, 1946, he was given an honorable discharge in the usual form. After an investigation by the Criminal Investigation Division of the Army, relator was placed under arrest in February of 1949 for desertion from the Army in March, 1943.
A general court martial was convened at headquarters, Fifth Army, in Chicago, Illinois, and the relator was tried and convicted of desertion under the 58th Article of War, 10 U.S.C.A. § 1530, and was sentenced to be dishonorably discharged, to forfeit all pay and allowances, and to be confined at hard labor for three years.
Under established procedure the proceedings whereby relator was court martialed would be reviewed by the commanding general of the Fifth Army. Before he did so the relator filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. Before that court held the hearing on the petition the Commanding General announced as the result of his review that the sentence of confinement was reduced to ten months and the "dishonorable discharge" mitigated to a "bad conduct discharge." Thereafter a hearing was had in the district court, which granted the writ and discharged the petitioner, the relator herein, from custody of the Army.
Although it is the law in this circuit that in granting or denying a writ of habeas corpus the judge or court should make findings of fact and state conclusions of law, Wood v. Howard, 7 Cir., 157 F.2d 807, 808; Tucker v. Howard, 7 Cir., 177 F.2d 494, 497, findings and conclusions were not entered herein. It is apparent, however, from the remarks of the judge at the hearing, that the basis of his action was that by issuing the honorable discharge to relator, he felt the Army had passed upon relator's entire military record.
Article of War 47, 10 U.S.C.A. § 1518, provides in part:
"Action on record of trial. (c) Before acting upon a record of trial by general court-martial or military commission, or a record of trial by special court-martial in which a bad-conduct discharge has been adjudged and approved by the authority appointing the court, the reviewing quthority will refer it to his staff judge advocate or to The Judge Advocate General for review and advice; and no sentence shall be approved unless upon conviction established beyond reasonable doubt of an offense made punishable by these articles, and unless the record of trial has been found legally sufficient to support it.
"Approval. (d) No sentence of a court-martial shall be carried into execution until the same shall have been approved by the convening authority: * * *."
Article of War 50(e), 10 U.S.C.A. § 1521, provides in part:
"Action by board of review in cases involving dishonorable or bad-conduct charges or confinement in penitentiary. (e) No authority shall order the execution of any sentence of a court-martial involving dishonorable discharge not suspended, bad-conduct discharge not suspended, or confinement in a penitentiary unless and until the appellate review required by this article shall have been completed and unless and until any confirming action required shall have been completed. Every record of trial by general or special court-martial involving a sentence to dishonorable discharge or bad-conduct discharge, whether such discharges be suspended or not suspended, and every record of trial by general court-martial involving a sentence to confinement in a penitentiary, * * * shall be examined by the Board of Review which shall take action as follows: * * *."
Thus the district court assumed jurisdiction, granted the writ of habeas corpus, and discharged the relator before the record of the trial by court martial was acted upon by the reviewing authority and before the record was forwarded to the office of the Judge Advocate General for further appellate action.
Article of War 53, 10 U.S.C.A. § 1525, became effective February 1, 1949,*fn1 and provides that any person convicted of an offense committed during the period of World War II has one year from the termination of the war, or within one year after final disposition of a case upon ...