Alive Again

For 18 years, ex-Navy Steward Hubert Ashe had to live with the harsh consequences of a dishonorable discharge. Though he had served from the Sicilian invasion to the Japanese occupation, Ashe was barred from 46 Government benefits, including free education, hospitalization, housing, unemployment compensation and burial in Arlington National Cemetery. Like other ex-servicemen in the same fix, Ashe had no right of appeal in any court. It was, he says, "really like dying."

Defense v. Offense. Now 42 and a Boston lathe operator, Ashe feels he has come back to life. In a precedent-setting decision, his dishonorable discharge has been tossed out by the U.S. Court of Appeals for the First Circuit. And the court has all but endorsed what he claimed all along--that he was totally innocent of the charges.

In 1947 Ashe was accused of assaulting another sailor with a knife in Puerto Rico. Before they were jointly tried by a general court-martial, one of Ashe's two co-defendants told the Navy commander defending them that Ashe had been merely a bystander when the assault occurred. On taking the stand, the same man suddenly switched his story and implicated Ashe. Startled, the commander told the court: "I don't think I can represent them both properly." How could he defend one man without attacking the other? Not moved, the court ordered counsel to continue, and found all three defendants guilty. A Navy lawyer reviewing the case later frankly noted that Ashe was denied "effective assistance of counsel guaranteed by the Sixth Amendment."

Even so, Ashe spent 15 months in federal prisons and was dishonorably discharged. At the time, there was no U.S. Court of Military Appeals (founded in 1950) to review cases like his. And federal district courts could not then spring a military prisoner merely because effective counsel had been denied him. Ashe got no help until 1963, when the Veterans of Foreign Wars put him in touch with Richard Murphy, a brand-new graduate of Boston University Law School.

Duty to Perform. Murphy realized that he had been handed a legal riddle. No longer a military prisoner, Ashe was not eligible for a federal writ of habeas corpus. And to make matters worse, Article 76 of the Uniform Code of Military Justice says that properly reviewed courts-martial are "final and conclusive," binding on all civilian courts. In an effort to bypass Article 76, Murphy argued that Ashe's court-martial was void from the start. In Massachusetts' U.S. District Court, where he sued Defense Secretary Robert McNamara to correct Ashe's record, Murphy pointed to a 1962 law that gives district courts jurisdiction for the first time over cases in which a U.S. official has been asked "to perform a duty owed to the plaintiff."

Although the district court still refused to take jurisdiction in light of Article 76, the appellate court saw things Murphy's way--and thus spelled out an exception to Article 76 that may well embolden other ex-servicemen in Ashe's situation. In effect, Ashe v. McNamara is another sign that U.S. military justice is gradually assuming many of the standards of civilian justice. Not only is Ashe ecstatic; his boss is so pleased that he has ordered the Navy veteran to resume his tenth-grade education at the company's expense.

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