Joseph Orby Smith, Jr., Appellant, v. Secretary of the Navy, Appellee, 506 F.2d 1250 (8th Cir. 1974)

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U.S. Court of Appeals for the Eighth Circuit - 506 F.2d 1250 (8th Cir. 1974)

Submitted Nov. 14, 1974. Decided Nov. 20, 1974

Thomas M. Bradshaw, Asst. Federal Public Defender, Kansas City, Mo., for appellant.

Frederick Griffin, Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before GIBSON, Chief Judge, CLARK, Associate Justice, Retired,1  and WEBSTER, Circuit Judge.


Upon a careful consideration of the record and of the briefs and arguments of the parties, the Court has concluded that the judgment appealed from should be affirmed for the reasons stated in Judge Oliver's well-reasoned memorandum opinion.

Although it is clear that Smith's 1942 court martial conviction was for non-service connected offenses, under the reasoning of O'Callaghan v. Parker, 395 U.S. 258, 89 S. Ct. 1683, 23 L. Ed. 2d 291 (1969), retroactive relief upon this basis is not available. Gosa v. Mayden, 413 U.S. 665, 93 S. Ct. 2926, 37 L. Ed. 2d 873 (1973). We are also of the opinion that the District Court correctly concluded that Smith must exhaust his administrative remedies under 10 U.S.C. 869 before applying to the courts for relief on his claim of the lack of a knowing and intelligent waiver of counsel.

The judgment of the District Court dismissing the petition is hereby affirmed.


Associate Justice Tom C. Clark, United States Supreme Court, Retired, sitting by designation